Research On Electronic Evidence

With the popularization of compute and wide application of Internet, the rapid development of electronic commerce and electronic governmental affairs, and the high-speed increase of web users, the disputes correlated with computers and webs are increasing. The electronic data information,such as the data information stored in computers and the net information in the internet transmission, frequently appears in procedure activities as the foundation of rights declaration of concerned parties. Those electronic data information are called electronic evidence. Compared with traditional evidence, electronic evidence has its unique characteristics. Whether it can be evidence in procedure, what legal status it should have, how to collect and acquire electronic evidence, and how to judge its application and reliability have become the hot issues in the research and discussion of evidence studying circle. Based on the references of achievements acquired in electronic evidence, the article tries to expatiate on the above issues. Chapter 1 mainly discusses the basic theories of electronic evidence. It involves the conception, characteristics and legal status of electronic evidence. At present there are varied expressions to electronic evidence in theory circle, concluded mainly as "electronic data evidences", "computer evidences", "electronic evidences", and "electronic network evidences"and so on. Through the analysis of each expression, the article summarizes that there are at least three common recognitions in the conceptions given by scholars: first, the emergence, storage and transmission of electronic evidence can not be separated from the support of computer technique, storage technique and network technique; second, electronic evidence is "binary"computer language processed by modern calculating tools and information processing equipments; third, electronic evidence performs functions of proving certain facts of cases. Compared with traditional evidence, electronic evidence has such characteristics as immateriality, high-technology, complexity, objective trueness, easy to be damaged, and diversity in expression forms. Furthermore, electronic evidence can be rapidly collected, easy to store, convenient to transmit and to search, and can reappear again and again. Now, for the legal status of electronic evidence, the academic circle has three influential propositions: "audiovisual materials theory", "book evidence theory", and "traditional evidence form evolution theory". The modus operandi in the above propositions, either pigeonholing electronic evidence into the same traditional evidence or into seven traditional evidences, is not a redeeming measure. The nature of audiovisual materials is to represent through visual images and sound, to apperceive directly though seeing and hearing; while a rather large part of electronic data records, electronic data exchanges, electronic chatting records, electronic call-board records, and electronic signatures in electronic evidence cannot be seen and heard, thus cannot be attributed into the category of audiovisual material; meanwhile, the multimedia form of part of electronic evidence can also be hard to be covered by traditional audiovisual materials. There are also obvious differences between electronic evidence and book evidence: first, they have different carriers. Book evidence can be apperceived directly, while electronic evidence cannot appear directly unless certain techniques are used; second, the mediums are different. Book evidence has varied mediums, while the mediums of electronic evidence are primarily magnetic and photo-electricity mediums; third, book evidence is hard to juggle and has strong fidelity; while electronic evidence is easy to juggle and difficult to discover the juggles. Although "traditional evidence form evolution theory"overcomes the shortage of "book evidence theory"and "audiovisual materials theory", it classifies electronic evidence into kinds of traditional evidences, which will not only do harm to the recognition uniformity of electronic evidence and the application uniformity of related regulations, but also make evidence rules built in the long time judicial practice of traditional evidence face the fate of modifying or losing its original form. The objective demand of the characteristics of electronic evidence itself, the particularity of applying rules, and the many faceted representation forms all determine that electronic evidence should have its independent legal status.Chapter 2 mainly discusses the collection of electronic evidence. Collecting electronic evidences is the precondition of handling them. The chapter involves such issues as the identification of the subjects of electronic evidence collecting, the choice of collecting manners and methods, and how to fix electronic evidence and save it from damage, etc. According to the current laws and regulations of our country, the subjects of electronic evidence collecting include each concerned party of the procedure, electronic technical experts, detecting staff or special investigating staff, network service agent. In daily judicial practice, mostly used manners of electronic evidence collecting include the case detecting staff searching and detaining electronic evidence; network supervising and intercepting to hear the electronic evidence; ordering the network service agent to offer electronic evidence, and so on. The methods of electronic evidence collecting include print and output, copy or replication, taking photos or kinescoping, closing down or detaining the storage medium of electronic evidence, data decoding, data resuming. Searching and detaining electronic evidence is a mostly used electronic evidence collecting manner in present judicial practice. The searching and detaining of electronic evidence should follow the principles of timely, legally, completely, professional personal and acquiring evidences by professional technical instruments. Its objects not only include compute system hardware and other storage medium, but also other electronic equipments like auto responder equipment, digital camera, hand holding electronic equipments, net connected equipments, BP, printer, scanner etc. Searching and detaining electronic evidence can be divided into two stages of spot perambulation and data analysis. When performing the search and detainment, corresponding work procedure and some secrecy obligations should be carried out. The save of electronic evidence refers to use certain form to fix the collected electronic data information and keep it safe so that judicial staff or lawyers can use when analyzing and defining the case facts. The save of electronic evidence includes routine save and notarization save. Routine save refers to fixing and storing electronic evidence through manners of printing,drawing, taking photos, kinescoping, micro-copying, copying, keeping in archives, reconnaissance, detaining, sealing up for keeping and so on, to transfer the evidence either to written form or to material evidence archiving form. The notarization save of electronic evidence includes traditional notarization save and network notarization save. The virtual and time nature of electronic evidence, especially of the network electronic evidence determines that the network notarization saving will become the developing direction of the save of electronic evidence. Chapter 3 mainly discusses the censoring and judging of electronic evidence. It needs to pay attention to the choice of censoring methods and censoring contents during censoring and judging. The censoring and judging methods include: screening method, comparing method, confirming method, identifying method, open evidence simulating experiments method, and excluding method. The censoring contents of electronic evidence include the censoring contents of objectiveness, relative, legality and completeness. The censoring of electronic evidence completeness usually unfolded from three aspects of the source of electronic evidence ,the methods electronic evidence collecting transmitting is saving ,the contents of electronic evidence The relative censoring, on one hand,should make sure whether three objective relations between electronic evidence and case facts, on the other hand, should make sure the manner nature, close degree and definite degree of the relation between electronic evidence and case facts. The legality censoring lies in three aspects: first, censor the subjects of electronic evidence collecting legal or not; second, censor the form of electronic evidence subjecting legal or not; third, censor the collecting ,picking, saving of electronic evidence tally with /accord with legal procedure and manner. Strictly speaking, completeness censoring is part of objectiveness censoring, but it is extraordinary important due to the characteristics of electronic evidence. Therefore, the article picks completeness censoring out of objectiveness censoring to discuss. Completeness censoring is to make sure the date text as electronic evidence complete and not revised. Its censuring contents involve several sectors of the generation, storage, transmission of electronic evidenceequipment technical measures applied in those sectors, which excludes the possibility of forging and revising electronic evidence through the censoring to above sectors and contents. All in all, with the wide application of electronic evidence in procedure, our country must strengthen the study on legislation correlated with electronic evidence, and moreover regulate electronic evidence collecting, censoring and applying through legislation so as to make electronic evidence give its play to prove in procedure...