The Study Of Electronic Evidence

Computer and network technology has been described as more unprecedented than other technologies in the rapid trend of entering into people's daily life since the 1950's,and its future development potential can not be easily assessed.The impacts on people's lives may be even beyond the human other social activities.The spread of electronic data also infiltrates naturally into the crime and the judicial field of countering crime,so its importance in the criminal proceeding grows significantly.Today,as evidence being magistrate,the electronic evidence which has generally been generated by the new technologies puts forward a new test to the proceedings.It makes the judicial system all over the world not only never ignore relevant questions of electronic evidence,but even have to put them at a very important position to consider.A lot of countries under the two systems of statute law and case law have been ahead of China at this point,most of them have corresponding legislation coping strategies,including build the rules of evidence,proof,examination,certification and other aspects of electronic evidence.But in China,although it has been involved sporadically in civil procedure laws and administrative procedure laws,it is rather scattered,fragmented,and it is still a blank needed to be solved in criminal procedure laws.A small number of people in academic and practice community advocated consolidating the laws of evidence in the three lawsuits into a unified law of evidence,this claim has been negative as per China's national conditions,and to amend the overall Code of Criminal Procedure has been put on the legislative agenda.Electronic evidence has deeply influenced the forms of evidence type in criminal proceedings and it should find its specific position in the Code of Criminal Procedure. Therefore,this article makes the following discussion for electronic evidence from the perspective of the Legislative Code of Criminal Procedure,designing to make some rough ideas about amending the Code on this issue that has to be faced to,to enrich the reference information of legislators.This article is divided into five chapters,separately from the concept and the characteristics of electronic evidence,the legal status of electronic evidence,the evidence and the certification of electronic evidence in criminal proceedings,and the amending legal framework for electronic evidence in the Code of Criminal Procedure,to explore the restriction and application of electronic evidence in criminal proceedings. Chapterâ… ,first of all,begin from the concept of existing evidence.The concept of the evidence in China's Criminal Procedure Law is very simple,it considers:"All the facts that prove the real situation of the cases are evidence." It simply provides the connotation of the quality of evidence that all the materials of evidence are evidence if they meet the requirements of this definition.However,the existing law further limits the evidence,"must be verified to be the basis for final decision",that is,not all facts that can prove the real situation of the cases are evidence,and it forms the current conflict in the concept of criminal evidence.So in my opinion the concept of electronic evidence,must not only contain the characteristic that the form of existence of the information should be electronic data,but also contain the meaning of the law of evidence to be regarded as the integral definition.Therefore, the concept of electronic evidence should be divided into two parts,one is the concept of electronic data,and the other is the concept of legal significance.For electronic data,I think broad definition should be used,to make the legislation inclusive.For the part of the legal significance,it must reflect the review of electronic data should have been finalized and can be used as the basis to judge.A complete description of the concept of electronic evidence is as follows:all information which are generated,stored,transmitted,outputted via the use of electronic technology or other related technology and equipment,and can prove the real situation of the cases.Finally,I simply generalize the characteristics of electronic evidence, including digital,high-tech,stability and vulnerability existing side by side,network and so on.Most scholars believe that electronic evidence has vulnerability of being modified easily, but I think its basis of high-tech technology indeed makes the traces of modification can not easily be grasped,but it is precisely that this characteristic is not easy for ordinary people to make changes,and development of high technology also makes it easier to detect traces of modification,so I prefer the characteristic of stability.These characteristics of electronic evidence are not only the reasons why separate legislation is clearly required,but also the basic for the content of following chapters.Chapterâ…¡mainly focuses on the legal status of electronic evidence.Our country used closed classification of evidence in the past,so electronic evidence was often classified as a particular type of traditional evidence.For the classification of electronic evidence,the current theories of the formation include "audio-visual materials theory","documentary evidence theory","exhibits theory","conclusion of expert corroborations theory","mixed evidence theory","independent evidence theory" and so on.By analyzing these current theories of classification,I think,while the audio-visual materials and electronic evidence have natural "kinship",they already have a clear distinction with the development of science and technology,such as the different basic technologies needed to depend on,the different performance status of transmission,transformation and presence of various levels of equipment interior as well as the meaning of audio-visual materials could not completely cover all forms of electronic evidence.Therefore,the separation of the audio-visual materials and electronic evidence is a general trend.In addition,the characteristics of electronic evidence have also decided it not to belong to the documentary evidence,exhibit evidence and conclusion of expert corroboration.In favor of dismembering electronic evidence into any traditional evidence,"mixed evidence theory" gives more huge impact to traditional evidence system,and the supporters of this theory are not able to achieve the intention of maintaining the stability of original law through attempting the adoption of conservative legislation.In view of this,I bring up that electronic evidence should have an independent legal position, and then make corresponding design of the law.The closure and formalization of the traditional classification have shown the obvious drawbacks increasingly in the face of the social development,it should be comprehensively modified by the opportunity of adjusting the Code of Criminal Procedure.I reclassify the China's traditional evidence by borrowing the common trichotomy of documentary,exhibit and witnesses evidence in foreign,and make the electronic evidence independently stand side by side with these three evidences.I think the traditional forms of evidence are only the manifestations of these four forms of evidence,in order to make the law more inclusive,there will be no more classification under the four evidences.Evidence,as the source of the evidence question,is the initial aspect of all the evidence activity,and certification is the ultimate goal of the evidence,the burden of proof and the cross-examination.Therefore,Chapterâ…¢and Chapterâ…£mainly focus on the evidence and certification of electronic evidence in criminal proceedings.Chapterâ…¢mainly focuses on the evidence system of electronic evidence.First of all, analyze the need for different evidence measures of static and dynamic electronic evidence beginning from the classification of electronic evidence.The evidence information stored by static electronic evidence has been curing in the digital electronic equipment,generally,it will be quite well-preserved for a long time without the damage of artificial factors or the damage to the electronic equipment,so for this form of electronic evidence,using traditional search, seizure,etc will be able to achieve the basic evidence.The dynamic electronic evidence is at the network status,the general search,seizure of evidence can not complete the collection of information,and it needs to adopt more effective measures of evidence.On this basis,I further discuss the subject of evidence,the principle of evidence and the evidence collection procedures of electronic evidence.Although the "Internet Police" which has already existed in the interior of the detection organs has made remarkable achievements on evidence of electronic evidence,there still are some issues of backward technology equipment,less overall quality of staff,not close in regional cooperation and so on.Also,technical experts could be employed to carry out supporting investigators to evidence,it could make the investigators help each other with the experts,improve the efficiency of evidence.During the evidence,we should determine the evidence principle of timeliness,comprehensiveness,and balancing punishment to crime and protection of human rights.It is necessary to regulate the preparation before the evidence,protection measures during the evidence and preservation after the evidence in the evidence proceeding.Then in this article,through studying the measures of criminal investigations in the "Convention on Cybercrime",I put forward the defect of China's current evidence measures and the direction of improvement.Establish the opinion that the electronic evidence have to take the special evidence measures of real-time collection,highlighting the improvement of protection measures of human rights,stipulating the obligations of confidentiality and help,embodying the principle of proportionality. Comparing to the evidence of judicial organs,it is more necessary to protect and regulate the evidence activity of the subject of the non-judicial organs,in the final of this chapter,I suggest for this question that the parties should strengthen their awareness of evidence, several forms of evidence should be established to ensure the implementation of their evidence function,and make difference between the legitimacy certification of the evidence recorded in audio,video secretly by parties and the review standard of being illegal in evidence by judicial organs.Chapterâ…£mainly focuses on the certification system of electronic evidence.First discuss the need for the intervention of the assistant subject in the certification,the principle of carrying out non-discrimination,the principle of classification and the principle of based the discretion of the judge.Second,further explore the issues of evidence qualification and proven ability of electronic evidence.As an independent form of evidence,electronic evidence should be subject to the determination of relevance,authenticity and legitimacy to determine the eligibility of evidence.To determine the authenticity of electronic evidence has greater significance.Through using the reference of expanding the original connotation of electronic evidence in "functional equivalent law" in foreign,determine the production of a copy of the case to illustrate the copy has the same effect with the original."True of the law" theory can also be used for authentication of electronic evidence,so can shift the determination of proven ability to the judgment of integrity,and determine the power of proven ability by determining whether the contents of electronic evidence and electronic system are complete or not.Therefore I believe that the determination of proven ability of electronic evidence should not only carry out the judge's discretion,but also combine with other methods to support,we could define the rules of proven ability of several electronic evidence in the law,develop industry specifications or standards in technology,and establish the rules of investigation and verification to help judges to comprehensively understand the information,such as the generate process and methods of the electronic evidence.Finally,summarize the first four chapters,in Chapter V,I put forward the general outline of establishing the system of electronic evidence in the amendment of the Code of Criminal Procedure.I advocate to take a practical and positive legislative attitude for the system of electronic evidence,study the foreign practice,combining with the reality of China to formulate the operational rules,do not rigidly adhere to a purely theoretical studies,and use the form of legal documents of multi-level effectiveness to form encircled legislation, generally considering the balance of the Code and the clarity of norms of electronic evidence. The legislative content should be comprehensive and highlighted for the characteristics of electronic evidence.Limited to my spares and shallow knowledge,and the shortage of related information,this article only make some simple discussion on the basic law question of the electronic evidence,put forward some immature opinion on the issues such as the concept of electronic evidence,crisscross classification of evidence,evidence of the subject of non-detection organs and so on.Omissions and weaknesses are inevitable,hope scholars and teachers criticize please.