Research On The Bias Of Electronic Evidence

In the context of the booming development of information technology,electronic evidence has emerged as a major type of evidence,but issues related to its evidentiary bias have gradually become magnified.Evidence is the soul of litigation;litigation relies on evidence to reconstruct the truth and make fair judgments based on the facts.Therefore,the presentation and examination of evidence by both parties are crucial in litigation.However,the evidentiary bias of electronic evidence has resulted in uneven abilities of the parties involved in collecting and presenting evidence.Furthermore,due to the strong professional and technical characteristics of electronic evidence,it not only exhibits structural biases similar to traditional evidence but has also evolved into a new form of bias,namely,the informational bias of electronic evidence.The causes of the bias related to electronic evidence can be mainly attributed to the following four points.Firstly,it is inherent in the professional and technical nature of electronic evidence.The acquisition,storage,and analysis of electronic evidence require specialized knowledge and skills that are not accessible to everyone.Secondly,it stems from the interests of the dominant parties benefiting from the evidentiary bias.These parties,driven by their own litigation interests,often create barriers to reinforce their unjust litigation advantage.Thirdly,there is a lack of regulation concerning the dominant parties benefiting from the evidentiary bias.Currently,there are no effective legal norms in our country to regulate the dominant parties and address the issue of bias in electronic evidence.Fourthly,there is a lack of proactivity in court investigation and evidence collection,meaning that when the bias in electronic evidence puts the parties in a predicament,the judicial power may fail to provide timely support.The bias related to electronic evidence not only undermines the basic principle of burden of proof allocation in civil litigation and violates the principle of litigation integrity but also lowers the efficiency of the litigation process.Currently,in legislation,there is a limited response to the bias in electronic evidence in China.One notable response is the system of requesting documentary evidence and the court’s investigation and evidence collection system.The "Several Provisions of the Supreme People’s Court on Evidence in Civil Proceedings" implemented in 2020 explicitly states that the relevant provisions regarding the documents-submission obligations also apply to electronic data.This approach can partially alleviate the structural bias in electronic evidence but overlooks the informational bias that arises from its unique characteristics.At the same time,the system of requesting documentary evidence has limitations when facing the bias in electronic evidence due to its inherent ambiguity and its adaptation from being originally tailored for documentary evidence to the application to electronic data.Furthermore,the court’s investigation and evidence collection system is often neglected by judges due to the objective pressure of having a high caseload and limited personnel,unable to effectively restrain the issue of bias in electronic evidence.In response to this,advocating for improving the existing measures targeting the problem of electronic evidence bias,it is urgent to address the causes of the problem.This can be achieved by establishing a system for expert assistance,improving the documents-submission obligations,imposing information disclosure obligations on internet companies,and introducing an obligation to clarify the facts of the case.Furthermore,both litigants should be given the obligation to jointly restore the true facts,in order to eliminate the adverse effects of electronic evidence bias.