On The Application Of Electronic Data Problems And Solutions

2013newly revised Civil Procedure Law has list the Electronic Data as anindependent evidence, which has existed for many years in the judicial practicebeen " rectification of names." However, the legislation does not address manypractical problems of using Electronic Data in our civil litigation, such asauthenticity and legality of the review-that is, the problem to determine anelectronic data’s credibility. Article69of the Civil Procedure Law stipulates: thepeople’s court shall consider those legal facts and documents notarized instatutory procedures as a basis of fact. This provision gives notarized evidenceprobative force directly, and thus become the remedy of the law whose ruling inelectronic data use is almost blank. However, the notary is not a surefire plan topreserve electronic data, but only as a stage-related legislation expediency inmissing evidence. Electronic data wants to play a state “king of evidence " in thenew era of judicial proof, the legislation is to deal with the electronic data usingfundamental policy dilemma at this stage.This paper is divided into four chapters. The first chapter is an overview ofelectronic data. Through comparing electronic evidence with other more types ofevidences that can be easily confused in concept, the intangibility, objectivity,and destructiveable of electronic data compared to traditional evidences aregeneralized and summarized; secondly, recalled the legislative process ofelectronic data. From denying then the limited recognition of their qualificationsto actually admit that now in the process of Electronic evidence legislation,showing improvement and advancement of the law on the one hand, but our lawsin terms of electronic data has not yet formed a complete system. In addition, thespecific recoverable lack of rules also proved to be a major obstacle to the forceof using E-evidence. The second chapter describes the specific issues in using electronic data.Questions focused mainly on two aspects: one appears on the challenging to thetraditional evidence theory, such as the rule of original evidence and the hearsayevidence; another one is the overreliance on the notary of electronic data securityissues in practice. There are deficiencies in notary preserving electronic dataeither at the court, the parties or notary institution itself. For a notaryorganization itself, preservation of electronic data is still missing completeexecutable norms; For the Court, in view of the technical features of electronicdata, the notary cannot guarantee the authenticity of its security; For parties,litigation frequently require electronic data notarized is neither economical andinefficient.The third chapter examines the foreign advanced legislation in terms ofelectronic data. By contrast introducing the relevant provisions of the law forelectronic data in the UK, USA, France, Japan, summarizing common lawcountries in terms of electronic data legislative attitudes and their commoncharacteristics and, finally, giving inspiration and guidance for the future ofChina’s legislation to improve electronic data related laws.The final chapter gives suggestion to improve the system of related ideason the basis of introduction of foreign advanced electronic data legislation. First,we should accept the electronic data era and be awareness of its characteristics,in order to better use of electronic data in the judicial practice, clarifying its basicconnotation and extension is the most important; Second, the emergence ofelectronic data brings not only many challenges to the traditional rules, butpeople also need to redefine the evidence concept of present law. Provisions onthe traditional rules of the original evidence, the best evidence, etc. also need toobtain the corresponding improvement and development. Finally, theestablishment of a whole set of the criteria for investigating electronic data is advised.