Study On The Authentication Rules Of Electronic Evidence

The verification of electronic evidence is the basis of determining the ability of electronic evidence and the precondition for electronic evidence to play the role of proof.The distinguishing rules of electronic evidence is to determine the electronic evidence in Anglo-American law system have the workability of many evidence rules in a kind of very important,on the one hand,the existence of distinguishing rules of electronic evidence for criminal litigation proof activity provides a solid foundation,to determine the case facts,correctly apply the law,effectively solve the social dispute to make impartial judgment has a positive role;Distinguishing rules of electronic evidence,on the other hand,will also be able to clear the burden of proof of the parties,to expand the connotation of the burden of proof,to determine whether the judge the evidence recoverable control,thus established the judge center referee,positive and effective against the prosecuting and defending parties in lawsuit,to establish the authority of law,the promotion of the smooth action,found that real case entity also has a very important role."Authentication”was first introduced by professor zhang baosheng from the evidence code of Anglo-American law system,but there is no obvious legal existence in China,which is basically hidden in the review and judgment of evidence.In view of the origin and connotation of"distinguishing",the author focuses on the domestic scholars and foreign scholars on distinguishing the understanding of the differences,and based on this general form of distinguishing and substantive requirements,defines the concept of clear is given in this paper,the distinguishing-proof in order to make its move shown evidence to achieve the requirements of the evidence ability and to prove the identity and forms of evidence relevant activities.Compared with judicial proof,authentication has its own unique characteristics in the level,object and standard of proof.On the level of proof,the judicial proof is the first level of proof,authentication is the second level of proof;As for the object of proof,the object of judicial proof is the fact to be proved,while the object of verification is the proof of the attribute of the evidence used in judicial proof activities.In the standard of proof,the standard of authentication is lower than that of judicial proof,as long as it can be proved on the surface.The most complete construction of the rules for the verification of electronic evidence belongs to the United States.The highly developed electronic technology enables the United States to have a more comprehensive consideration of electronic evidence authentication in judicial practice,which not only takes into account the evidence attributes of electronic evidence,but also takes into account the technological attributes of electronic data.In view of the electronic evidence authentication,the United States has carried on the request mainly from the authentication content,the method,the standard and the procedure four aspects.With regard to authentication,not only does it require a review of its source,but also of the integrity of the content of the electronic data;As for the methods of authentication,the us federal rules of evidence establishes the methods of circumstantial authentication and self-authentication,and defines their applicable types.As for the criterion of electronic evidence authentication,it adopts the standard consistent with the traditional evidence,namely the standard of"apparent credibility".The procedure of verification exists in both the pre-trial evidentiary discovery procedure and the cross-argument in the process of trial.Compared with the perfect electronic evidence authentication rules in the United States,the scattered rules on evidence examination and judgment in China are difficult to meet the authentication requirements.2010 two rules of evidence,although on the review of the evidence judgment of unprecedented systemic regulation,including electronic evidence generated by the time,place,running status and system stability of the electronic equipment and electronic evidence for collection and storage for programs and so on,but involves distinguishing the provisions of electronic evidence is very few,this request need to perfect the distinguishing rules of electronic evidence;At the same time,improving the rules of electronic evidence authentication is of profound necessity to the perfection of the system of physical evidence authentication,to reverse the inherent concept of"emphasizing the entity over the procedure",and to promote the discovery of the reality of the entity of case conclusion.The preexamination function of authentication should be made clear first when perfecting the authentication rules of electronic evidence.The application of other evidence rules should be carried out under the condition of authentication,which is also the essence of authentication.Secondly,it is necessary to unify the scattered evidence review and judgment provisions and the confused evidence identification standards,and determine the connotation of the burden of proof,including the identification of evidence,and establish the identification standard of"dominant evidence".In expanding the electronic evidence is circumstantial evidence on the basis of distinguishing and distinguishing use,more professional technology and methods is used to to distinguishing of electronic evidence,including the use of electronic evidence attached to prove ownership information method,by comparing the hash value method and the use of special forensic software and technology,and the spirit of contract into the distinguishing of electronic evidence,clear when on a particular evidence of the prosecuting and defending parties in workability if agreed,then distinguishing will get done.