The Procedural Guarantee Of The Authenticity Of Electronic Evidence In Civil Procedure

In the rapidly expanding internet infringement actions, the pivotal role of electronic evidence in ascertaining the facts in issue is increasingly prominent. Such evidence, however, characterized by its virtuality, intangibility, etc., does frequently incur doubt of its authenticity and reliability since it may be deleted or altered easily. Therefore, how to ensure its validity and give it the deserved play in litigation has turned out to be an unavoidable issue. This treatise intends to make some instructive efforts to quest how to guarantee the authenticity of electronic evidence through due process.Based on an in-depth analysis of the cause of subjecting it to doubt of its truth, in contrast with the legislations with regard to electronic evidence in some common law and civil law countries, this article suggests some specific proposals as to how the authenticity of electronic evidence can be guaranteed procedurally in the processes of collecting, questioning and authenticating the evidence in a lawsuit. First, at the stage of evidence collection, the authenticity of electronic evidence ought to be guaranteed through judicial preservation of evidence, notary interposition and the assistance of the network service provider, so as to solve the problems of the failure of the party to collect evidence of such sort, as well as of the low degree of proof. Secondly, an expert assessor system is to be established, thus the judge can acquire valuable reference commentaries from the technical personnel in the process of electronic evidence questioning; and the related collector(s) of the electronic evidence shall appear in court to face up a cross-examination. Finally, in the authentication procedure, the judge shall execute a strict procedural review over the production, transmission, storage and collection of evidence in a scientific way of examination. Thus, by means of the strict judicial process, the authenticity and reliability of electronic evidence may be guaranteed. To conclude, it is a startpoint of this treatise to guarantee the authenticity of electronic evidence to the maximum extent through the improvement of legal procedures so as to advance substantive justice and promote litigation efficiency.