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Research On The Attribute Of Electronic Evidence

Posted on:2010-11-10Degree:MasterType:Thesis
Country:ChinaCandidate:T JiangFull Text:PDF
GTID:2166360275960747Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The emergence of digital technology makes electronic evidence come into the litigation areas, and with the continuous development of digital technology, the role of electronic evidence in litigation area is more important. The electronic evidence in foreign countries has already experienced decades of research, with a more solid theoretical foundation and legislative protection; In China, with the advent of electronic information technology, electronic evidence is entering the line of sight of studies, and scholars have used a variety of doctrines to respond to the wave rider of the era.At our traditional evidence theory, the attribute of evidence is a topic with Chinese characteristics. The research approach with a solid Chinese foundation seems to have nothing to do with the electronic evidence, and yield to foreign the Competency of Evidence as well as the Admissibility of Evidence. It makes our study on electronic evidence, possibly lose the local community foundation, but also means the more mellow study on attribute of electronic evidence exist the danger of being abandoned. In the view of that, I tried to elaborate it from the traditional perspective on the topic of electronic evidence attribute, hoping to to admit electronic evidence with the environment of Chinese law.In this paper, there is a total of more than 30,000 character through the five parts to introduce the attribute of electronic evidence :The first part is about the legal definition of electronic evidence. It analyze of the concept and characteristics of electronic evidence. Through the analysis of two aspects of inherent nature of electronic evidence and external performance which emerges in the judicial practice, combined with the relevant legislative experience abroad, It points out that at the lack of electronic evidence of the state legislature in our country, the electronic evidence should be understood more broadly , including all the data and its derivatives existing in electronic form, which is used as evidence generated by information technology or information device. Under this concept, electronic evidence has four characteristics of high technology,inherent invisible and external diversity or stability, reliability and easy dissemination.The second part is about the legal status of electronic evidence. Research on the legal status of property is a prerequisite whose determination will be in favor of a comprehensive and accurate summary. In this part, electronic evidence is definited as a new type of evidence, in the foundation of the analysis and comparison between documentary evidence,audio-visual materials,mixed evidence and independent evidence and so on, according to its high-tech characteristic and unique rules, as well as its performance of complex and diverse forms and more important rolein practice.The third part is about property of evidence and electronic evidence. After the analysis of traditional doctrine and its focus of debate, electronic evidence and its traditional method are checked out from the perspective of truth and value, combined with electronic evidence's unique character, pointing out that the electronic evidence should be complied with a theoretical model with three property of objective authenticity, relevance and legitimacy.The fourth part is about the academic discussion on electronic evidence attribute, which is the core of this article. First of all, it points out that the emerging of burgeoning electronic evidence gives issues to national systems and the judicial practice of evidence, and then introduce solutions of domestic and abroad, separately from three areas of the objective authenticity, relevance and legitimacy, including: In terms of objective authenticity, facing the conflict of electronic evidence and its own rules of the best evidence and hearsay, the Anglo-American legal systems has taken exception to the original and replacement, such as legislative measures. The civil law system and our country is focused on the normative aspects of taking evidence; In terms of relevance, the basic description of national state of theoretical research indicates that as one of electronic evidence property, relevance attribute receives much national attention; In terms of legitimacy ,by articulating the meaning of legitimacy, and the outline of its embarrassed plight when using and integrating lectronic evidence, it is necessary to launch the study of establishing excluding rules.The fifth part is the thoughts for the electronic evidence property. Starting from the same three areas: In order to ensure the authenticity of electronic evidence, it could be carried out from two aspects of technical and legal means; relevance should have a series of objective criteria under doctrine of discretional evaluation of evidence; Legitimacy agrees with exclusionary rule of illegally obtained evidence in our country.From the point of view of research methods, this paper takes the historical research methods and comparative research methods: First of all, it analyzes its similarities and differences with evidence in other forms, while studying the electronic evidence; Secondly, in the course of the study, it draws on much of the outcome of advanced foreign legislation, combined with the specific circumstances of our country . From the aspect of content, the problem of electronic evidence is discussed through the five sections of this article, making every effort to the integration of between electronic evidence reseach and attribute of evidence reseach, and the elimination of the traditional theory of evidence on the conflict of electronic evidence, hoping to create a new perspective for the theory of electronic evidence.
Keywords/Search Tags:Electronic Evidence, Attribute of evidence, Legal Status, Objective Authenticity, Relevance, Legitimacy
PDF Full Text Request
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