Research On The Legitimacy Of Criminal Electronic Data

Since electronic data was identified as a new type of statutory criminal evidence in 2012,electronic data is playing an increasingly important role in criminal cases.Compared with traditional material evidence and documentary evidence,Electronic data has unique intangible,technological,vulnerability and reproducibility,these essential characteristics pose new challenges for judges to review and judge the legitimacy,authenticity and relevance of electronic data,the legitimacy of electronic data is the basis of electronic data as the final decision,therefore,the problem of legitimacy needs to be solved urgently.This article is mainly divided into three parts:The first part is the meaning of legality of electronic data.First of all,the definition of electronic data should not be limited to computer information,but should be the objective data formed by electronic technology,and the characteristics of electronic data different from traditional evidence are explained in detail.The analysis of these characteristics paves the way for understanding the legitimacy of electronic data.Secondly,it points out that the factors affecting the legality of electronic data include the subject of evidence collection,the procedure and method of evidence collection and the existence form of electronic data.The second part discusses the current situation and existing problems of electronic data legitimacy.At present,there are two main factors influencing the legality of electronic data in China: the first is that the scope of the subject of evidence collection is unclear,generally,the identity legitimacy and technical eligibility of forensics personnel cannot be satisfied at the same time,This leads to the dilemma in practice,that is,those who can collect evidence have no right to do and those who have the right do will not collect;The administrative organ is not an appropriate subject of evidence collection stipulated by the criminal procedure law,Whether the electronic data obtained by administrative organs need to be converted can be used as thebasis for making a decision? Hangzhou popularized and implemented the system of "no need to send personnel in different places for certificate examination" in 2018,it makes it convenient for investigation organs to retrieve electronic data in different places,can we further promote innovation?Whether it can be fully promoted? Is there a legal risk? The second is that the procedures,means and methods for obtaining legal evidence are not clear,The electronic data is usually attached to the carrier,the development of information technology makes electronic data itself cover a lot of privacy,with immeasurable value,improper procedures or means of obtaining evidence by forensic personnel,it will not only damage the authenticity and legitimacy of electronic data itself,damage to the carrier or too wide transfer scope will infringe on the legitimate rights and interests of the third party.And the rule of excluding illegal evidence has not been perfected according to the special circumstances of electronic data forensics,It is even more difficult to exclude illegal electronic data than traditional physical evidence and documentary evidence.The third part is three solutions to the above problems: First,clarify the scope of the subject matter,cautiously expand the scope of the subject matte of evidence,drawing on the experience of France and the United States,combined with the system of obtaining electronic data from different places in Hangzhou,in the case of allow the parties who have an interest and specific third-party enterprises to guarantee the authenticity,access to electronic data;The other is to standardize the forensics procedures and methods of electronic data,to improve the principles of evidence collection,such as the principle of proportionality and the principle of writ,innovative methods of evidence collection,explore the way of obtaining evidence by entrust and Internet plus;The third is to try to improve the exclusion rules of illegal electronic data,define the scope of mandatory exclusion and defect correction,the transition stage can rely on the discretion of the judge.