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Top1. Overview Of Electronic Evidence And Rules
There is no uniform evidence law in the judicial practice in China, and the relevant evidence systems are divided in the three big procedural laws. In the context of the new criminal procedure, the provisions are lack of maneuverability, although there are evidence provisions in the judicial interpretation, it still cannot meet the needs of judicial practice.
To establish a rational criminal evidence law, we must start from the rationality and procedural justice, to analyze the characteristics of different evidence, and construct the relevant evidence rules. Thayer, a famous jurist of evidence, believes that the core content of the evidence is a set of technical rules that are essentially negative norms and rules of exclusion. These specifications and technical rules make clearly defined which facts may appear in the court as well as how to prove the facts appear in the court (Chongyi, 2014; Shuhou, 2015; Jianlin, 2014; Jiahong, 2014; Jiahong, 2014).
Scientific evidence rules are an important embodiment of the procedural justice and the guarantee of human rights. Professor Baoguo Fang has three points about the functions and roles of evidence: first, evidence rules help identify the case facts, but also restricts the fact investigation to a certain extent. Second, evidence rules enhance the operability of the proceedings, and restrain the discretion of the judges (Ping, 2013). Third, evidence rules help to protect human rights, specific social relations, and social interests.
1.1. Definition of Electronic Evidence
With the development of computer technology and extensive application, in the earliest 50s in the last century, the emergence of the concept of computer evidence, which generates electromagnetic records during the computer or computer system running in the process and uses to prove the facts of cases. Later, with the application of network technology, there appeared the concept of network evidence, which refers to the electromagnetic records in the network environment and uses to prove the facts of cases. Until the 90s in last century, besides computer and network, the emergence of a large number of digital products, and the advanced digital signals of telephone, Telegraph and television which were used to transmission signals by analog signal. At this time, the jurisprudential circle called this “electronic evidence” which differs from the traditional forms of evidence “record” (Ping 2013).
In this paper, in order to cover different forms of electronic evidence, we choose the carrier form of electronic evidence for the generalized definition: exist in electronic form, used as the information technology or information equipment evidence form, all the data and its derivatives. This definition indicates that the electronic evidence should have legal characteristics firstly, and it is used as a proof material to prove the case facts. Secondly, the electronic evidence are present in electronic form and information technology, so their generation, transmission, resulting, acceptance and storage have a certain commonality. Finally, the carrier of electronic evidence must rely on electromagnetic media, such as disk, CD type, so the data information always leave some traces in these electromagnetic media.