An Analysis Of Basic Issues And Collection Of Electronic Evidence

Evidence is the core and heart of a case, in which authenticity of evidence is a determinant. With development of science and technology, electronic technology matures and electronic evidences come into being. As computers and network get popular, electronic evidences get ubiquitous. Along with fast developing economy in China, there will be litigations regarding network intellectual property, digital contracts, network-related privacy, computer crimes, thus electronic evidences become more and more important. At present, there are various terms applied to electronic evidences, such as electronic evidence, computer evidence, and digital evidence. There are also several academic perspectives as to the legal status of electronic evidence, such as audiovisual evidence theory, written form evidence theory, mixed evidence theory, independent evidence theory, and traditional evidence theory. Each of theory has its strong point. This article partly agrees to the traditional evidence theory, that is, electronic evidence is not an independent form of evidence, but belongs to forms of traditional evidences, such as electronic physical evidence, electronic documentary evidence, electronic audiovisual evidence. As evidence, electronic evidence has three characteristics: objectivity, legality and correlativeness. In addition, it has such unique traits as intangibleness inside but diversiform outside, easy-to-be –destroyed, high exactness, speedy transmission and recoverableness. As far as its specific function in the evidence system, electronic evidence can, in a case, either be direct evidence, or be indirect one. Based on his work experience, the author thinks that attention should be paid to the following points: (A) In criminal litigation, the party to discover and collect electronic evidence can be any technical institution. Courts shall recognize such electronic evidence as conforms to forms stipulated in laws. (B) Regarding electronic evidence collected unlawfully (such as by hacker's action), it is not recognized in civil litigations, but in criminal litigations, digital data collected unlawfully can be transformed through a certain procedure and get evidence status. (C) Absence of testimony can be broken though in cases demanding electronic evidence. Special as computer-/network cases are, we can take advantage of evidence chain to break through against absence of testimony on the side of criminal suspect. (D) Working guideline shall be established on how to obtain electronic evidence. As electronic evidence is not easy to obtain or it may be not accepted because of collection based on unlawful procedure. This article gives a brief introduction to electronic evidence collection guideline. With appearance of electronic technology comes a new era of judicial evidencing --electronic evidence era. The author hopes that steps shall get faster to make legislatures in electronic evidences to go with the times.