Study On The Issue Of Electronic Evidence

Owning to the rapid developments of modern scientific technology such as computer, network and communication etc, our society was brought into a brand-new age of information. The globalization of electronic information technology permeates the fields of politics, economy, and culture. It changes our traditional life style gradually and makes items such as the electronic commerce, the E-government, the electronic community and the network communication into reality. As a result, they have greatly enriched people's life. However, questions in these new fields also come out, for example: illegal invasion of network, on-line pornographic service, on-line burglary, on-line cheating, and trade dispute in electronic commerce. This kind of new legal matter is quite different from the tradition one. And the key of how to realize as well as solve these new questions is also the evidence question which needs to be grasped and clarified in the enforcement of judicature. Since our country has no independent evidence law, although it is a fact that the electronic evidence has been widely used in the judicial practice, there are still few articles related to electronic evidence in the legal norm. According to the present research, although some scholars have conducted researches about the electronic evidence to certain extent and have published some papers, the majority of this aspect's fundamental researches are still not thorough enough. After reading massive articles about electronic evidence, the author decided to analyze the electronic evidence from his own point of view, and hoped it can be a help to the development electronic evidence.This article altogether is divided into five chapters. In the first chapter, after reading the massive correlation data, and in the view of different concept's indication about the electronic evidence of the numerous scholars, the author put forward the brand-new electronic evidence concept:"electronic evidence is by electronic form, electromagnetism form ,optics form or other similar forms existence, in produces process ,transmission process, receive process, memory process, take computer technology , networking, video recording sound recording technology communication as the carrier, proving the case fact the data message."And in view of electronic evidence concept, then summarizes the electronic evidence to be different with the traditional evidence characteristic: invisible, easy destructiveness, multiplicity, and accuracy.The second chapter discusses electronic evidence ownership question research, the author in view of the academic circle about electronic evidence attribute different opinion, after has studied audio-visual material theory, book evidence theory and mix theory, The author thinks these theories are not the final means solving the question but insists finally the independent evidence theory, and thinks the electronic evidence to the independence outside the traditional evidence.In the third chapter the author identified the availability and the proof-power of electronic evidence. The availability of electronic evidence is that the electronic evidence must meet the legal requirement and the standard. The author studies from four aspects: relevance, legality, objectivity and integrity. The relevance refers to the intrinsic attribute of electronic evidence. it is the objective connection between the electronic evidence and the case fact; the legality means that from the evidence form, the collection procedure and the means it must meet the legal requirement to become the limit to the evidence as the verdict basis; the objectivity refers to the electronic evidence fact must be left over along with the occurrence and the development process of the case. It can not exist or be shifted by one's subjective will. The evidence itself and the connection between the evidence and the case are all objective. It can reflect the case really; the integrity is that the examination judgment of electronic evidence's integrity and computer system's integrity on which the electronic evidence relies. As for the proof-power of electronic evidence, the author has discussed the debate on whether the electronic evidence is a direct evidence of an indirect one in the academe. The author finally draws the conclusion that the electronic evidence cannot be said simply belongs to the direct evidence or the indirect evidence, but it must be carried out in the case, and then it can be decided according to different connecting degrees. To the duplicate question which argued in the academic circle, with a lot of reading about articles and scholar's viewpoints, the author summarizes that the electronic evidence original part must be given the expanded explanation, especially to the particularity of electronic evidence and traditional evidence. The original part and the duplicate must be checked unmistakable, and given them equal proof strength. Only in this way can thus certificate related case better.In the forth chapter the author discusses some questions which must be paid attention to in the reality utilization. First of all, author has analyzed the electronic evidence collection. As the main part of evidence collection, the author thought that they should not be limited merely to the procedural law stipulation umpire personals, the procurator personals, and the detectives, should be expanded to the victims, self-tellers, the suspects, the defendant, witness, the lawyer and so on. It must encourage the general web cams and the computer users to supervise together, searches and provides the crime evidence for the judicial organ. About electronic evidence collection procedure, after having consulted the correlation data, the author suggested the following procedures: protecting the scene, analyzing data, tracing source, submitting result. These close related steps are advantageous to obtain the first material as soon as possible, and achieves the evidence collection procedure publicly and fairly. About the electronic evidence collection method, after consulting the computer expert, the author proposed the following experimental methods: decipher, restoration, notarization, sealing up and so on. In the fourth chapter, the author also discussed the human rights safeguard issue which involves in the electronic evidence utilization. He also proposed his own views on the human rights safeguard questions in the process of searching and electronic evidence collecting.In the last chapter the author firstly enumerated some overseas electronic evidence legislative situations, for example, the United Nations Commission on International Trade law,"the UNCITRAL Model Law on Electronic Commerce"; US"Federal Rules of Evidence","Uniform Rules of Evidence(1999) of USA"; Canada"Unified Electronic Evidence Law(1998)"; South Africa"Computer Evidence Law(1983)"; Philippines"Electronic Commerce Law(2000)". And the author introduced simply about the electronic evidence legislative stipulation in our country, such as Dalian, Liaoning Province,"Monitors Facility Record Processing Traffic citation using Road traffic Electron Stipulation"; Guangdong Province"Guangzhou Foreign trade Implementation Electron Data exchange Temporary provisions". Devised about our country electronic evidence's legislation that the author firstly wants to be clear about starting point of legislative thought. We may profit from the advanced foreign experience, but we must consider our country's specific condition. The electronic evidence legislate in our country is still blank at present. We should refer to various electronic evidence legislation experiences in other countries, thoroughly research and prove the guiding principle and legislative content of our electronic evidence legislation. Regarding to the construction of our electronic evidence legislation content, we must establish the concept, status, availability and proof power of electronic evidence, and it certainly must be stipulated explicitly in the law.The electronic evidence research is just started in our country, many theories and practical questions need further researches of the legislator and scholars. Therefore this article is written from the theoretical level and refers to the overseas related legislation. It may have some immature problems which need the further examination and studies in the judicial practice.