The Study Of The Relevant Issues About The Electronic Evidence In Cyber Crime

"Electronic evidence is the king of the latest generation of evidence,"with which is a new challenge the worldwide evidence legislation is confronted as well as an inevitable result in internet age. In the course of combating cyber crimes electronic evidence plays a very important role, whereas China's criminal procedural legislation has failed to be certainly formulated so that there exit different attitudes and ways of operation towards the electronic evidence during the judicial practice, which badly interrupt China's cyber crime combating. Basing on the criminal cases in cyber crimes in this thesis the author analyze the issues and difficulties of electronic evidence existing in the judicial practice, and tries to make some suggestion.This thesis consists of three parts:PartⅠ.In this part the author mainly focus on the way how to determine the suspect by the electronic evidence in practice. It is well-known that the major distinction between cyber crime and traditional crime is that in cyber crime the suspect often contacts with the victim indirectly and cannot be found in crime scene, and the evidences collected are always in electronic forms. The particular forms of crimes and evidence have caused great difficulties in identifying the suspects in practice, mainly in the following two aspects: (1) problems about identifying the suspects through the computer terminal; (2) problems about identifying the suspects through the electronic communication records. Failure to solve these problems properly is bound to affect China's capacity in combating cyber crimes. During the judicial practice these problems often ignored are outlined too simple in judgment. For instance, it is often stated that it can preclude the reasonable doubt; however the means how to preclude are explained insufficiently. As a rule of law such an approach is not to be encouraged, for it can not solve the real issues, instead it will get rise to a standstill in China's process of rule of law.The author propose two solutions by means of the analysis of the specific cases: Firstly although there are many problems existing in the operation of criminal identification measures that we've often used, it can hardly deny their good effects in identifying the suspects in cyber crimes. Therefore the author suggest that while regulating the operation of criminal identification we should give the fullest consideration to recognize the particularity of electronic evidence, and afterwards formulate the identification rules in accordance with the nature of electronic evidence. Secondly investigators should place emphasis on collecting indirect evidence during the collecting process for the electronic evidences identifying the suspects are always indirect. In practice the staff in judiciary tends to favor more the direct evidence, even use the illegal means, such as torture, threat, cheating and etc, to obtain confessions of suspects, whereas they pay less attention on the indirect evidence which should and might be collected. In the course of identifying suspects in cyber crime the collected electronic evidences which can hardly used directly are always the IP address and the electronic communication records. Thus during this part the author take a specific case to illustrate the problems that in order to preclude the reasonable doubt we should form a chain of evidences while collecting all indirect evidence.PartⅡ. In this part the author mainly focus on regulating the collecting procedural of electronic evidence in cyber crimes. In China there isn't much experience in collecting electronic evidence in combating cyber crime and there aren't also many specific and operational rules made by relevant laws, which give rise to the irregularity in the electronic evidence collecting activities in judicial practice. The three main issues existing in practice as follow:(1) Neglect of the subsidiary information electronic evidence collection;(2) Lack of the technical evaluation to electronic evidence;(3) Lack of supervisory procedural in searching and seizing the electronic evidence.The author proposes the corresponding solutions about the above three issues.PartⅢ. In this part, the author focused on the issues about the examination on the admissibility of electronic evidence in cyber crime. The admissibility of electronic evidence discusses whether an electronic evidence can be used as the fact to determine the case in criminal action. As a kind of high-tech evidence the examination of electronic evidence still bring great many challenges to the judge although the content of electronic evidence which should be examined is ordained in Rules Concerning with the Evidence Examining and Judging in Death Penalty Cases. This part mainly focuses on the analysis of the difficulties with which the judge confronted while examining the electronic evidence and then tries to propose the measures to solve these difficulties. It is well-known that the contents of the criminal certification consist of the admissibility and the probative force of evidence. Although different, they are closely related during the review of each. Therefore, to study the review of the admissibility of electronic evidence is to help the judge decide the probative force of the electronic evidence afterwards.