Research On Authentication Of Electronic Evidence

With the progress and development of society,the application of electronic evidence in judicial practice is more and more,and the independent status of the evidence of electronic evidence in the Criminal Procedure Law and Civil Procedure Law revised in 2012 has been established.Since electronic evidence is a product of high technology,it is said that electronic evidence is not only of various types,but also develops rapidly,which leads to the difficulty of authenticity determination of electronic evidence.However,in academic research,the authenticity of electronic evidence has always been controversial and the research is scattered and lacks systematic research.In judicial practice,due to the lack of a unified standard for determining the authenticity of electronic evidence,it also leads to different degrees of recognition of the authenticity of electronic evidence in various places,and even the occurrence of different judgments in the same case.Conduct systematic research on recognition:The first part is to introduce the electronic evidence.In practice,a clear electronic concept is needed.This concept can clearly define the connotation and extension of the electronic concept.That is,data or information stored or transmitted in electronic form to prove the facts.Then make an accurate distinction between similar and relevant concepts of electronic evidence.For example,what is the difference between electronic data and electronic evidence,the former is evidence material,and the latter is evidence type.There has also been controversy over the attributes of electronic evidence.The focus of their dispute is whether to highlight the storage medium of electronic evidence.However,the author believes that the essential attribute of electronic evidence is the electronic data that proves the facts of the case.This article summarizes four characteristics unique to electronic evidence: virtual spatiality,stability,vulnerability,and lossless regeneration.It is precisely because of its four characteristics that it has particularity in the identification process.The second part introduces the connotation of the authenticity of electronic evidence.The authenticity of electronic evidence should include three parts of analysis: the authenticity of the evidence carrier,the authenticity of the contentinformation and the fact that the customer can be used to prove the facts of the case.There has always been a theoretical dispute about the authenticity of electronic evidence that is easily distorted and highly reliable.Proponents of the fragile theory believe that because electronic evidence itself is easily modified compared with traditional physical evidence and other evidence and its modification is not easy to be found,they believe that electronic evidence is extremely easy to be modified.Supporters of the extremely reliable theory believe that every erasure record of electronic evidence will leave traces,and can be analyzed and judged by technical means,so the electronic evidence is extremely reliable.And systematically summarize the theoretical basis of electronic evidence,systematic principles,electronic trace theory and virtual field theory.The third part is the object,method and rule of the authenticity determination of electronic evidence.Most of the research on the authenticity of electronic evidence is the object and method of authenticity determination of electronic evidence,but the concept of the authenticity determination of electronic evidence itself is not Too much research.The biggest challenge in using electronic evidence in legal practice is to ensure the authenticity of the objects of electronic evidence.In other words,it must be determined whether the evidence information is true or false based on a clear objective carrier and the evidence information contained therein.Only after the review and determination can the electronic evidence be used.Judging the key issues in the information related to electronic evidence requires special equipment and technology,so the determination method discussed in this article is how to identify the authenticity of the evidence information contained in the electronic evidence.At the same time,it also analyzes the rules for authenticity determination of electronic evidence.The fourth part is to analyze the problems in the authenticity determination of electronic evidence in civil litigation.The main reason is that the judge has a prejudice against electronic evidence in the process of authenticity determination of electronic evidence.On the other hand,due to the imperfect determination rules,the judges have too much discretion.There is also a judge's inconsistent way of determining electronic evidence and the process of determination is relatively simple.There is also a dilemma that the original rules are difficult to implement.The essence of the original rules is to guarantee the authenticity of the evidence through originality,but due to the characteristics of electronic evidence,the loss in the copy process is almost negligible,which also makes the original and copy The difference has narrowed and may even disappear completely,but in practice it still adheres to the original rules so that some copies cannot be used to prove the facts of the case.Since the preservation is part of the fixed electronic evidence,the fixed method will affect the authenticity of the electronic evidence,then the problems in the preservation will also affect the authenticity.In the process of electronic evidence preservation,there is a problem of the neutrality ofnotary organs.The method of electronic evidence preservation lacks corresponding standards,and the premise of preservation is too strict.The last part is to give legal advice on the problems in the authenticity determination of electronic evidence.To solve the problems in the identification,it is inseparable from the standardized identification standards.The most important thing is to establish a clear and operable electronic evidence authenticity determination rule,which should be carried out from the four links of electronic evidence generation,storage,collection and transmission.For electronic evidence that cannot be directly identified,you can pass self-identification and the system It is always in normal operating state and network notarization for indirect identification.For the original issue,we should establish rules that treat it as an original.We have perfected the problems in preservation by establishing a diversified body of preservation of electronic evidence and improving the preservation procedures.