What Is Email Evidence?

Electronic evidence generally refers to "any form of evidence that a party presents to the court in digital form." ^[1]

With the popularity of computer and network technology, e-commerce activities and many other web-based interpersonal contacts have emerged in large numbers,

Electronic evidence In order to conduct research on electronic evidence and avoid cognitive confusion, it is only necessary to accurately understand the connotation and extension of its concept. From the perspective of logic, the connotation of the concept of electronic evidence should be the sum of the essential attributes of the objective things reflected by the electronic evidence; the extension of the concept of the electronic evidence means the sum of the objective things with the connotation of the electronic evidence. It is not necessary for logic to answer clearly what is the meaning and extension of electronic evidence, but the first task of electronic evidence is to clarify the concept of electronic evidence. If we can not grasp the connotation and extension of the concept of electronic evidence, we cannot correctly formulate the rules and principles of electronic evidence, and it will be difficult to make targeted research on the admissibility, probative power, classification and examination of electronic evidence. So the research on electronic evidence starts with the concept.

The definition of the concept of electronic evidence mainly includes the following:

Concept 1: Online evidence is electronic evidence, also known as computer evidence, which refers to electromagnetic records that are produced during the operation of a computer or computer system to prove the facts of a case with their recorded content.

Concept 2: Electronic evidence refers to the fact that the parties to a contract determine the rights and interests of the parties through network transmission

Services, and the implementation of digital information such as payment of contracts, settlement and exchange of goods.

Concept 3: Electronic evidence is a means to prove the facts of a case through computer-stored materials and evidence. Its biggest function is to store data, which can comprehensively and continuously reflect the data related to the case. Independent evidence between documentary evidence.

Concept 4: Electronic evidence is litigation evidence stored in magnetic media in the form of electronic data.

Concept 5: Electronic evidence is data or information stored in digital form in computer memory or external storage media that can prove the true situation of the case.

As the research on electronic evidence is still a new subject in the fields of justice and computer science, it is difficult to conclusively define the concept of electronic evidence. It is gratifying that although researchers have different understandings and perspectives on electronic evidence, they have reached a certain consensus on the essential attributes of electronic evidence, which has laid a foundation for further collaborative research and communication.

feature

The characteristics of electronic evidence are signs, signs, etc. that are characteristics of people or things. A characteristic is the uniqueness of a person or thing, so it excludes things that are common to others or things. Since electronic evidence is a new form of evidence, there are two main points of view for the induction of the characteristics of electronic evidence:

Opinion 1: Electronic evidence is characterized by intangibility, diversity, objective truth, and fragility

Electronic evidence first has inherently intangibility, that is, electronic evidence is essentially just a bunch of "0" and "1" processed in accordance with coding rules, which are invisible and intangible. Secondly, the diversity of external manifestations of electronic evidence can not only be expressed in text form, but also in multimedia forms such as graphics, images, animations, audio, and video. Because it uses integrated, interactive, and real-time computers And its network system has greatly changed the way evidence works. Third, electronic evidence has objective truth. Excluding factors such as human tampering, errors, and failures, electronic evidence is the most definitive of all evidence. It is convenient to store, rich in performance, and can be stored non-destructively for a long time and repeated at any time.

Electronic evidence is controversial in Chinese theoretical circles about how to adopt electronic evidence, and the practice in judicial practice is not the same. One view is that electronic evidence is nothing special compared to traditional evidence. They are essentially the same as the basis of proof, and the standard of adopting traditional evidence can still be directly extended to electronic evidence. Some people call this "old bottled new wine" approach following the traditional legal spirit to solve new problems of electronic evidence as "tradition." Another view is that electronic evidence is indeed different from traditional evidence, and judges must take new and special considerations when examining the admissibility and probative power of electronic evidence. This reflects a particular concern of electronic evidence, which seems to imply the unequal treatment of electronic evidence and traditional evidence, so it is also nicknamed the "discrimination theory".

In fact, there are biases in both the "conventional theory" and the "discrimination theory", which have been abandoned by international legislative experience. For example, Article 9 of the United Nations Model Law on Electronic Commerce stipulates on the one hand that "(1) in any legal proceedings, the application of the rules of evidence shall not in any respect deny the admissibility of a data message as evidence : (A) on the sole ground that it is a data message; ... (2) for information in the form of a data message, due evidence should be given ", on the other hand, it states that" in the evaluation of a data The evidence of a message should take into account the reliability of the method of generating, storing or transmitting the data message, the reliability of the method of maintaining the integrity of the information, the method used to identify the originator, and any other relevant factors. " This reflects a basic guiding principle of its creator, the United Nations Commission on International Trade Law-neither discriminating on the basis that it is a data message or copying traditional authentication rules intact. For another example, South Africa, Canada, and the Philippines, which have separate electronic evidence laws, such as the Computer Evidence Act 1983, the Unified Electronic Evidence Act 1998, and the Electronic Evidence Rules, have only adopted standards for electronic evidence. Relatively specific notes without adding special conditions.

It is a correct approach to consider the particularity of electronic evidence and not to treat it differently in terms of admissibility and probative power. According to China's academic opinions and legal requirements, the seven standards for the adoption of traditional evidence can usually be summarized as relatedness standards, legality standards, and authenticity standards. Obviously, the establishment of China's standards for the use of electronic evidence must not set aside the three standards, but at the same time should be flexible.

Specifically, the judgment of whether an electronic evidence should be allowed to be adopted mainly depends on whether it has certain connection with the facts to be proved, whether it is formally true, and whether there are any major violations in its generation, acquisition, etc .; The probative power of electronic evidence mainly depends on how reliable it is in substance and how relevant it is to the facts to be proved. It is true that these dimensions are not equally important. In view of the fact that the computer system on which electronic evidence relies is vulnerable to attack, tampering, and not easy to find, and the electronic evidence itself is easy to be modified and difficult to leave marks, it is undoubtedly of special significance to examine the authenticity of such evidence.

First, objective impartiality. The technicality of electronic evidence determines its objective materiality. The computing, sending, receiving, storing, and presenting performed by electronic digital devices such as computers under normal operating conditions can be called "ironlessness", so it is more objective and fair than the traditional form of evidence.

Second, high-tech. Electronic evidence has a high level of science and technology, and contains a wealth of information.

Specifically, electronic evidence common in judicial practice can be divided into three categories:

First, electronic evidence related to modern communication technologies, such as telex data, fax data, and cell phone recording evidence;

The second is related to computer technology or

Electronic evidence due to

Electronic evidence of the Chinese Criminal Procedure Law can be used as

The current "Administrative Measures for the Registration of Judicial Expertise Institutions" and the 2005 Decision of the Standing Committee of the National People's Congress on the Administration of Judicial Expertise Issues stipulate the conditions that judicial appraisal institutions should have, but for the appraisal institutions that engage in the judicial appraisal of electronic evidence Qualifications and conditions are not specified. On the other hand, at present, some of our judicial appraisal agencies are weak in neutrality and unity. In view of this, the management of forensic appraisal agencies for electronic evidence must be synchronized with the unified management of forensic appraisals, to achieve standardization on the basis of unified forensic appraisal management. In this regard, on the one hand, electronic evidence judicial appraisal centers can be established at the provincial level, independent of public, prosecution, and legal institutions, with independent legal personality, and undergo annual qualification review and registration; on the other hand, electronic evidence judicial should also be considered The identification techniques and methods are different from the traditional physical evidence identification techniques and methods such as visual observation, physical and chemical analysis, and microscopic identification. They make independent provisions on the admission rules and professional qualifications of institutions engaged in the judicial identification of electronic evidence, focusing on engaging in electronic evidence. The diversity and advanced nature of testing and identification equipment and software of specialized forensic appraisal agencies, the number and professional titles of professional and technical personnel, professional experience, and judicial appraisal experience are regulated.

In China, the functional departments of public security, prosecution, and law all have the power to initiate judicial appraisal on their own initiative, and parties can only apply for supplementary appraisal or re-appraisal when they are not satisfied with the conclusion of judicial appraisal. Considering China's authoritarian litigation tradition and the reality of the disparity between the prosecution and the defense, the power of the power department to autonomously initiate judicial appraisal can be reserved. However, in order to protect the rights of criminal suspects, defendants and victims, judicial independence should be initiated. The power of appraisal is limited, such as establishing a notification system and improving relief procedures. Among them, the important one is to establish a system of reserve, that is, to retain the inspection materials for the parties to apply for re-appraisal or supplementary appraisal, which cannot be exhausted or destroyed.

"contract law"

Electronic evidence

With the continuous development of information technology, especially network technology, the globalization boom of the Internet has brought human society into a new information age. Because the Internet is not restricted by time and region, a new way of trading via the Internet emerges at the historic moment, which is quite different from the traditional transaction form. 10 In e-commerce, traditional contracts, bills of lading, insurance policies, invoices and other written documents are replaced by corresponding electronic documents stored in computer storage devices. These electronic documents are the electronic evidence in the law of evidence. In addition, the legal facts involved in many aspects including electronic privacy, network and computer security, intellectual property in the network, administrative management in the network, and industry management require electronic evidence to a large extent. Therefore, the research on electronic evidence is not a momentary "bulletin", it has at least the following aspects:

First, the research on electronic evidence helps to establish the legal order of evidence in the "electronic world" early. As we all know, since the 1990s, digital communication networks and computer devices have made the storage, transfer, statistics, and release of information carriers paperless.

Second, the study of electronic evidence is conducive to the development of evidence theory. In the aspect of evidence science, the traditional concept of evidence has been greatly impacted by electronic information, and not to mention that the form of electronic evidence is completely different from that in the traditional sense. Even the collection, review and judgment of electronic evidence also have new features.

In addition, the study of electronic evidence also has an impact on the progress of information technology. If it is said that the advancement of information technology has brought electronic evidence into the field of evidence research, the deepening of electronic evidence research will also trigger new thinking on the development direction of computers and their network technologies.