With the development of computer and network technology, the network has become an indispensable part of people's life and work. At the same time, civil disputes and computer crimes caused by the Internet are increasing day by day. Electronic evidence, a form of evidence based on high-tech electronic media, has also entered the judicial field, posing a new challenge to the original evidence system in China.
The difference between electronic evidence and traditional evidence
Electronic evidence refers to all materials that can prove the facts of a case in electronic form. At present, in judicial practice, we often encounter electronic evidence such as text messages and emails. E-mail), online chat, etc. Compared with other evidence, electronic evidence has the characteristics of high technology and invisibility, easy destruction and insecurity of content, multimedia and complexity, easy preservation, fast dissemination and repeatability.
A correct understanding of the legal nature of electronic evidence is directly related to the collection and authentication of electronic evidence. The author believes that the types of evidence are determined by legislators in legislation according to the characteristics of various evidence materials, analyzing the proof function of various evidence materials and combining the manifestations of evidence materials. Formally speaking, it is based on the external manifestation of evidence materials, while in essence, it is based on the internal characteristics of evidence materials that prove the facts to be proved. Therefore, it is inappropriate to simply classify electronic evidence as physical evidence, documentary evidence or audio-visual materials, only to realize that some characteristics of electronic evidence in a certain situation cannot reflect the whole of electronic evidence. In my opinion, the change from rope recording to paper recording to electronic storage is the change of record carrier from rope to paper to electromagnetic substance. From the point of view of evidence, paper can appear as documentary evidence or material evidence in different situations, which is essentially the same as the various attributes of electromagnetic carriers, except that electromagnetic carriers can also appear as audio-visual materials. Therefore, electronic evidence is not an independent type of evidence, but a mixture of electronic material evidence, e-book evidence and electronic audio-visual materials, which should be taken as the basis when collecting and appraising such evidence.
Collection of electronic evidence: diversity decision-making should be treated differently
Due to the diversity of electronic evidence, it should be treated differently when collecting:
1. Collect electronic evidence by SMS. In recent years, SMS has become an important way for people to contact. Because of its convenience and concealment, it is also regarded as an important criminal means and tool by criminals, such as using short messages to direct criminal activities or directly engaging in fraud activities. In such cases, if such evidence can be collected, it will often play a decisive role in the confirmation of the case, because each mobile phone user's mobile phone number and network access card number are unique, and after the short message is sent, the receiver's mobile phone can display the other party's mobile phone number. Only in this way can we determine who the sender is and play a role in confirming the facts of the case. When collecting this kind of evidence, the following methods can be adopted: First, under the condition that the receiving party has not deleted the short message, directly save the information and seal the mobile phone as the evidence material for the final judgment. Second, when deleting the SMS related to the case, you can retrieve the SMS content through the SMS operator. At the time of collection, the sending time, mobile phone number and content of the corresponding mobile phone message can be printed out through the stored information of the operator, and the source can be confirmed by the signature and seal of the staff present for investigation and interrogation.
2. Collect electronic evidence by e-mail. E-mail is a new way of communication based on the Internet. It is different from the traditional way of communication. It converts what people want to express into digital signals, which are transmitted through the network and presented on the other party's computer screen. E-mail has been confirmed in civil litigation. For example, China's contract law stipulates that the written form of a contract includes electronic data mail. In the field of criminal proceedings, it is also reflected in the interpretation of judicial organs, but there is no provision on how to collect it. When collecting, we must first understand the characteristics of e-mail. E-mail is different from other forms of electronic evidence in that every e-mail user must have an e-mail address, and each e-mail address has a unique user name, account name and password. The header of a pure e-mail has the sender, the website address and the sending and receiving time. Anyone who knows the user name, account name and password of registered users can send, receive or delete emails. Of course, for ordinary people, it is not easy to modify files directly in the inbox, because the files in the inbox are read-only and the modification is refused. Even if it is saved, it only changes its position and cannot change its attributes.
In view of the above characteristics of e-mail, the author thinks that there must be a premise when collecting e-mail, that is, to ensure that the collected e-mail is in a safe environment, that is, the computer hardware operating system where the e-mail is located is safe and the e-mail is not attacked by viruses or hackers, otherwise the collected evidence materials are meaningless. To meet this requirement, the recruited personnel must have certain computer and network technologies and certain equipment. In civil litigation, the Supreme People's Court stipulated the practice of experts appearing in court to testify in Several Provisions on Evidence in Civil Litigation, which is called the technical consultant system abroad. The author believes that this system can also be used for reference in criminal proceedings, and specialized technicians can be hired to collect electronic evidence, and they will explain the collection when they appear in court. Professional collection can be fixed by printing or copying, and the content and user name of e-mail can be directly displayed in court through multimedia demonstration.
3. Collect electronic evidence materials in the form of online chat. With the development of network technology, online chat is a timely two-way communication method, mainly including chat room chat and QQ chat. Chat room chatting is a "one-to-many" public chat through the chat room opened on the website, while QQ chat refers to a "one-to-one" private chat. Compared with e-mail, the existing environment is more open and difficult to collect. Therefore, there are three kinds of evidence to collect online chat evidence: one is the evidence of chat content, including the content of chat conversation and the simple personal information of the chat person. Of course, this information is generally false, and there must be a collected Internet IP address and network support for surfing the Internet; The second kind is the evidence of the system environment, that is, whether the software and hardware data of the computer we use are normal or not, which helps to prove the reliability of the online chat evidence; The third category is evidence of incidental information, such as IP address, server, online account, information transmission path, etc. So as to connect the chatterbox with a specific actor. Chat content can be collected through copying and printing by Internet service providers. If the network service provider has not saved it, it can collect it from the computer records of both parties and fix it by copying or printing. For the tampered chat records, you can hire specialized technicians to recover them, because the current technology is enough to prove that every hard disk erase record can be recovered, and the computer's modification of files is not completely deleted or overwritten. The evidence collected in this respect can be fixed by the way of expert conclusions issued by relevant experts, and can be used as regenerative evidence.
Authentication of electronic evidence: authentication standard and proof effect to be determined.
(1) Proof standard of electronic evidence. What kind of electronic evidence can be used has always been a difficult problem for judges, and it is also the main reason why judges dare not use such evidence boldly. The author believes that the standards of electronic evidence authentication include three points:
(1) related standards. In other words, the electronic evidence collected in the investigation should be related to the facts of the case or other controversial facts that need to be proved. The relevance of evidence is the substantive standard to solve the qualification of evidence, that is, the ability to prove, and it is also the core of whether evidence can be proved and the only content of evidential force.
(2) the authenticity standard. One of the characteristics of electronic evidence is its destructiveness and insecurity, so ensuring the authenticity of electronic evidence determines whether the evidence is adopted or not. Of course, we require electronic evidence to have certain authenticity, not absolute authenticity, because the computer and network technology on which electronic evidence depends cannot be 100% defect-free.
(3) legitimacy standard. Some people think that electronic evidence can't be used when the criminal procedure law doesn't stipulate the form of electronic evidence. In this regard, the author thinks that we should expand the interpretation to solve the current legal status of electronic evidence and make it clear in the future evidence law.
(2) Whether electronic evidence can be used as direct evidence. Some people think that electronic evidence is easy to be forged and tampered with, leaving no trace after forgery and tampering, and it is easy to make mistakes due to human reasons or environmental and technical conditions, so it should be classified as indirect evidence. The author believes that this is a misunderstanding of the legal nature of electronic evidence. The classification of direct evidence and indirect evidence is based on whether the main facts of the case can be directly proved. Electronic evidence is a mixture of electronic material evidence, e-book evidence and electronic audio-visual materials. It can appear as direct evidence or indirect evidence in different situations. We should not deny its direct role in proving the authenticity of the case because of its destructiveness. The author thinks that electronic evidence can be used as direct evidence, but it is not excluded as indirect evidence, which is determined by the multiple attributes of electronic evidence.