Research On The Electronic Evidence Preservation System Of Civil Litigation In China

With the development and penetration of Internet technology,electronic evidence appears more and more frequently in civil litigation,but also plays a more important role,and the importance of electronic evidence preservation is becoming more obvious overtime.In 2012,the legal status of electronic evidence is established in the field of Civil Procedure Law in China.Although the Civil Procedure Law provides for the preservation of evidence,the question of the preservation of electronic evidence is not specifically involved.However,the particularity of electronic evidence determines that it is very necessary to make systematic provisions on it in the Civil Procedure Law.At present,the provisions on electronic evidence preservation are only scattered in some court interpretations and industry rules,but there is no universal regulation.In practice,many new systems of electronic evidence preservation have been explored,but they are not yet mature,and there is still a lack of relevant guidance and regulation.In view of this,this paper makes a systematic interpretation and discussion on the electronic evidence preservation system on the basis of literature research and extraterritorial comparative study,and tries to evaluate the existing legislation,system practice and judicial extension of electronic evidence preservation in civil litigation in China in the light of the extraterritorial advanced experience,and further improve the electronic evidence preservation system.This paper is divided into four parts:The first part is an overview of the basic theory of the electronic evidence preservation system.Firstly,the concept of electronic evidence is defined,the similarities and differences between electronic evidence and electronic data are analyzed,and the reasons for choosing to use electronic evidence are discussed.Secondly,the concept definition of electronic evidence preservation and its development course are analyzed,which mainly analyzes the differences between preservation of electronic evidence and the forensics and fixation of electronic evidence.The development of electronic evidence preservation has gone through the stage of preservation from litigation preservation to pre-litigation preservation,from court preservation and notarization preservation to online platform preservation.Finally,the electronic evidence preservation is divided into types according to the preservation time and the subject.The second part is the extraterritorial study and enlightenment of the electronic evidence preservation system,By studying the laws and related systems of electronic evidence preservation in Canada,Malaysia,the United States,Taiwan,Japan and Germany,and analyzing their similarities and differences,and gaining some inspiration,such as the electronic evidence preservation system should legislate separately instead of applying the traditional evidence preservation system,the conditions for applying for preservation should be diversified and an attempt may be made to establish the preservation and disclosure of electronic evidence as an obligation of the parties.The third part is to introduce the status quo of electronic evidence preservation system in civil litigation in China and the problems in practice.This part mainly discusses the status quo of legislation and practice based on three kinds of preservation subjects,and points out the problems existing in the civil electronic evidence preservation system in legislation and practice.The fourth part puts forward some suggestions for the improvement of the electronic evidence preservation system from the perspective of legislation and institutional practice.In legislation,a unified and systematic electronic certificate system is established through the interpretation of civil procedure law or separate legislation.In the practice of the system,specific suggestions were made for the improvement of court preservation,notarization preservation and third-party data platform preservation.