| Since the second part of 20 century, especially 1990s, information technology has been improved rapidly. The network has more and more closely walked into the life of people, and has gradually been a part of people's life, study and work. The deep change of the manner of people's social life is taking place, which is the result of the development of science and improvement of technology, and the certainty of history too, although people haven't prepared for it. Today, while enjoying the convenience taken by the information technology, the men have to face the legal problems of the data message-the product of information technology, which is new and belongs to "cyber space". Among the problems of data message, the evidence problem is outstanding. Evidence is the core of litigation. Compared with traditional evidences, the data message evidence has remarkable and incompatible characteristics. How to deal with this problem of data message evidence has become a problem we must face-a pressing and inevitable problem. After all, the data message is in the vicinity of us. In current circumstances of our poor and conflicting legislation and ignorance in legal practice, and in the background of running country according to law and moving forward the procedure of legality, how to deal with the evidence problem of data message correctly-not only for the problem of reality, but also for preventing our country away from unfavorable position in the digital wave-is the focus of this article.The article is composed of five parts. The first is the elementary problems ofdata message. By international analysis, the author gives a concept of data message-a flexible and open concept, summarizes four features showing the notable difference between the data message evidence and traditional evidence, which are high-technicality, invisibility, easy-destructibility and complexity. From the corner of international legislation, the author states the common approach or principle?functional-equivalent approach, resolving primary and conflicting problems of written, original and signature that can not be involved with traditional evidences: data message is also documentary and suitable with original; the electronic signature has same effect with the hand-writing signature. The last is the importance of the research of data message evidence-not only for law, but also for technology.The second part is the legal position of the data message evidence. There are seven evidences in our tradition law, which the data message evidence belongs to? The author studies several points of view of researchers in our country, especially popular and adopted by parts of law opinions-"documentary evidence", "audio and video materials", "independent evidence", "comprehensive evidence". From the essence of data message evidence and based on classify of our evidence, the author gives a new standpoint: the data message evidence belongs to documentary evidence or video and audio materials according to the content of it.The third part is the collection and preservation of data message evidence. The author states the special collection of data message evidence from the collection person, inspection of the spot and test of investigation. The preservation of data message evidence includes common preservation and notary preservation. Thecommon preservation, which is done by the parties and the court, can be implemented in alternative way and shouldn't be harmful to the benefits of others. In current stage of information technology and legislation, notary preservation is one of the most efficient methods about preserving the evidence of "cyber world", although it is not unique. Network notary undoubtedly represents the direction of preservation development and has brilliant prospect.The forth is cognizance of data message evidence, including admissibility and effect of certification. In the aspect of admissibilily, being as data message evidence, it shouldn't be discriminated; moreover, its characteristics should be considered sufficiently. T... |
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