其次是保全的执行程序。电子数据的保全程序，以达到保障电子数据的原始性和真实性为目的。其考量标准当系以保全程序是否满足了“证据保管链”的要求为核心。所谓证据保管链（chain of custody），是指“从获取证据时起至将证据提交法庭时止，关于实物证据的流转和安置的基本情况，以及保管证据的人员的沿革情况”。“证据保管链要求每一个保管证据的人提供证言证明对证据的保管是连续的；不仅如此，还要求每一个人提供证言证明在其保管证据期间，证据实质上保持相同的状态……证据的真实性问题越重要，就越需要否定改变或替换的可能性”。证据的保管链条一旦断裂，该证据将可能不被采纳。在我国将来的电子数据完善立法中，可借鉴此项标准。
【原创】秦宗文 | 《关于办理刑事案件收集提取和审查判断电子数据若干问题的规定》评析
【原创】何邦武 | 互联网犯罪销赃案件中关于“明知”的探讨
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Professor, School of law, Nanjing University of audit, Zhejiang University Guanghua Law School Internet Law Research Center litigation law research team leader.
The necessity of establishing the electronic data security system of network crime
In the punishment of the crime of network transactions, the collection and storage of electronic data is the primary basic link, its importance is self-evident. Because only the custody of electronic data without defects can become the object of the court investigation, so that the court’s acceptance of electronic data becomes possible. Electronic evidence in cyber crime cases is often easy to lose. For example, some of the server’s log information is generally stored for about a month will be rolled off. Electronic evidence on the site is more likely to be removed, destroyed by the suspect. Not only that, some of the network platform, black sellers in the sale of 3, 4 months later, the site is often transferred even closed shop. Subsequently, some related electronic data is more difficult to obtain evidence.
Along with the reform of trial centered way to promote, improve the quality of the evidence will be the inevitable demands of the reform of the electronic data collection and storage will also be with no exception whatsoever, it can not be said to be a challenge.
However, because of the lag in legislation and the relative effects of lead caused by practical application and academic research, China’s criminal judicial practice in the relevant electronic data collection and storage concept complex: until 2012, with the revision of Criminal Procedure Law, the electronic data only as a kind of evidence into the legislative provisions of the lack of evidence, however how to collect still pay. In practice, in order to solve the problem of legislation, all departments have formulated the corresponding rules according to their own understanding, and formed their own concept system, which has been implanted in the concept of judicial personnel. In the research of the electronic data, the academic research on the characteristics and the responsibility of innovation has aggravated this disunity. The unification of legislation, practice and theoretical concept not only affects each other, but also forms a kind of path dependence, which causes the lock-in effect, and affects the stability, universality and possibility of law.
On the other hand, from the current situation of electronic data collection, collection, storage of electronic data should be specific passive detection methods including search, seizure, seizure and other traditional adapted forms, as well as the technical investigation of active investigation method and electronic data in the form of monitoring, monitoring records. Communication, monitoring, monitoring and monitoring sites. As for the electronic data collection of the network transaction crime, the monitoring and monitoring of communication monitoring is the main means. However, the electronic data of existing research are only discussed several passive way collection, and electronic data of several active investigation related collection is not discussed, i.e. not as whole electronic data gathering methods in criminal litigation research, resulting in knowledge of artificial fracture. It is not difficult to infer the logic of the human being’s hidden knowledge: the collection and storage of electronic data does not include monitoring and monitoring. Moreover, this logic of knowledge for the passage of evidence law books to comply with, regrettable.
The above situation shows that it is necessary to unify the relevant concepts of electronic data collection and storage. Due to the diversity of electronic data collection methods, the related concepts should be constructed in a systematic way: that is, a unified concept of the concept of a variety of electronic data collection methods. The construction of this species concept system, should fully consider the existing legislation and theoretical resources, in order to achieve the concept of maximum system in the construction of consensus.
As mentioned earlier, due to the changing technology, carrier and electronic data collection method of concrete is also in constant change, therefore, the relevant electronic data collection and storage is a concept can be used the way of evidence legislation in our country, in order to open the form listed with future new collection and storage species, will be more ready for the way. Accordingly, the author believes that in addition to the existing search and seizure and seizure such as electronic data collection and storage mode, but also to break the existing knowledge by the logic of curing the boundaries of the technical investigation in monitoring into electronic data collection and storage method. And on this, there should be a unified concept, and draw out the various concept under the specific collection and storage methods have in common, as the basic connotation of the concept, in order to achieve the integration of the electronic data collection and storage logic knowledge system.
In comparison, the discussion of specific types of electronic data collection, there are many ways to keep, and its concept connotation and specific selected collection, keeping convention after the formation of the research is still blank, there will be an even greater concept of collection and research of electronic data storage. In view of this, the author intends to explore the concept of electronic data collection and storage.
Two, the establishment of electronic data security system feasibility
In the selection of electronic data collection and storage of the concept, the author believes that the use of electronic data preservation as a concept should be a suitable choice. Generally, the preservation of evidence refers to the evidence of the loss, forged or altered, hiding or other circumstances is difficult to obtain in the follow-up program, by the parties and the defenders and agents ad litem upon request by the specialized agencies to take preventive and protective measures. The definition of evidence preservation should be understood, the concept of civil and criminal and administrative litigation can be used, but the existing legislation only the preservation of evidence set in civil and administrative litigation, criminal procedure law has no provisions. Although 100th of the provisions of the criminal incidental civil litigation in the property preservation system, but there is no evidence preservation, and the lack of a clear legislative logic.
As a matter of fact, in the traditional legislation of the Chinese world, the concept of security has been used in both civil and criminal proceedings. In criminal proceedings, it is generally used to refer to the search and seizure in criminal proceedings. According to the relevant provisions of the law of evidence and the preservation of evidence compiled by the Law School of Soochow University in 1949, the search and seizure in criminal procedure is the preservation of evidence.
It is feasible to set up evidence preservation in judicial practice, and there are also domestic academic circles about the establishment of evidence preservation system in criminal procedure. From the litigation practice, an effective way of preservation of evidence is not only the exercise of power, a boundary is also the power to set up, eliminating the punishment is not known, the power is unpredictable by the authoritarian power wantonly. In particular, in order to maintain the balance between the prosecution and the defendant in the lawsuit, the preservation of evidence is particularly important to the defense and its parties. Some scholars have argued that the establishment of evidence preservation system is an indispensable basic system of criminal procedural law, is to make up for the defensive weapon is the prosecution evidence means the lack of legislative defects can also make up for the criminal incidental civil lawsuit system, to identify the facts of the case, which plays an irreplaceable role in the efficient operation of criminal activities. Moreover, the current civil and administrative litigation legal norms, as well as some of the legal norms of criminal proceedings have established the rules of preservation or similar preservation, with the corresponding legislative basis. Finally, and most importantly, because of the variability of highly technical content, storage of electronic data storage mode and its dependence on the characteristics of the computer system, it is necessary to set up electronic data preservation system.
On the other hand, China’s current criminal procedure is not a model of the trial as the center, but the implementation of the public, prosecutors, the three organs of the division of responsibility, mutual cooperation, mutual restraint litigation system. The result is that all the investigation organs, procuratorial organs in accordance with the legal procedures for the collection of evidence has evidence qualifications, can be used as evidence. Although the reality of this kind of system has resulted in the fact that the evidence quality is not high, the current system has already become the starting point of the reform and the reality that must be acknowledged. Therefore, at the present stage, we should adopt a broad conceptual model for the understanding of evidence preservation, rather than only the preservation of evidence.
Three, the core of electronic data security system settings
To view, this paper argues that the preservation of evidence is a generalized concept of preservation, namely fair and efficiency based on the theory of criminal litigation, both parties can think the security system for the lawsuit behavior, which in addition to exercise the right of defense security procedures to start, preservation, the traditional sense of the implementation of the search and seizure also belongs to the preservation of evidence. The reason for this argument is that based on the concept of the model of procedural investigation, pretrial evidence preservation is more close to the parties to the parties and is conducive to the balance between the prosecution and the defense. Moreover, the author’s claim is consistent with the traditional theory of criminal evidence preservation and extraterritorial claims and institutional practice. The detailed argumentation of the author.
The system of evidence preservation involves the application and approval of security, the main body of the preservation, the mode of enforcement of security and the remedy of improper remedy. According to the characteristics of electronic data, the author believes that in the electronic data preservation, and implementation of the main way of the execution of the preservation technology, because of the complexity of the electronic data storage and preservation of evidence is unique, different from other forms, so it is necessary to be of particular concern.
The first is the main body of electronic data preservation. In accordance with the provisions of the fifty-second paragraph of the criminal procedure law of the people’s Republic of China, the people’s courts, the people’s procuratorates and the public security organs have the right to collect and obtain evidence from the relevant units and individuals in the case of public prosecution. Therefore, the people’s courts, the people’s procuratorates and the public security organs are the main subjects of preservation of electronic data. At the same time, in the specific types of criminal cases, the state security organs, military security departments and prisons within the scope of self investigation cases and public security organs have the same power. According to the provisions of paragraph second of the same, the administrative organ in the administrative law enforcement and investigating cases in the process of collecting evidence, documentary evidence, audio-visual materials, electronic data as evidence, in criminal proceedings can also be used as evidence. According to this, the administrative organ that exercises the functions of the administrative power of the state can indirectly become the subject of preservation of electronic data.
In addition, according to the provisions of the preceding 148th first, paragraph 2, the public security organs in the case, for the crime of endangering national security, terrorist crimes, mafia organized crime, a serious drug-related crime or other serious crime cases. And the people’s Procuratorate in the case, for major corruption, bribery cases and the use of the power of the serious violations of the rights of citizens of the major criminal cases. Will involve the preservation of electronic data. In view of the serious infringement of the human rights in the criminal procedure, the author thinks that it should not be granted to the social organization, the network platform institution or other social justice organizations.
No matter what kind of electronic data preservation of the main body, are faced with the relevant qualifications, but there is a lack of qualified qualifications. To solve the above contradiction, can set up a network of specialized institutions specializing in crime investigation, collection and preservation of electronic data network. Such as the U.S. Federal Bureau of investigation in its headquarters in the establishment of the network (cyber Division) and the relevant network group, cybercrime investigation and preservation of electronic data. I think, given the unique circumstances of increasing network crime and the crime itself, the future of our country should set up a cyber crime investigation specialized institutions, specializing in the collection and preservation of electronic data and cyber crime investigation.
According to the provisions of article 126th of the criminal procedure law, if necessary, it may appoint or employ persons with special knowledge to conduct an inquest or examination under the auspices of the investigators. In the specific electronic data preservation, technical experts should be under the supervision and guidance of the investigators, while not in violation of the basic principles of investigation activities, while the preservation of electronic data. But it is necessary to participate in the preservation of professional and technical personnel to make strict demands, in particular, to strictly abide by the principle of confidentiality, according to the specific requirements of the object, to protect the privacy of the relevant personnel. Because electronic devices can be stored at the same time. If the information stored in the extraction and copy preserved, will not only increase the unnecessary work, also be a lot irrelevant to the case information into the preservation of the data, resulting in serious violation of personal privacy.
Followed by the implementation of security procedures. Electronic data preservation program, in order to achieve the original and authenticity of electronic data for the purpose of. The consideration of the standard is the core of the preservation program to meet the requirements of the evidence custody chain. The so-called evidence chain of custody (chain of custody), refers to from obtaining evidence to the evidence submitted to the court for the basic situation of transfer and resettlement of the physical evidence of the evolution of the situation, and the personnel of custody. The evidence chain of custody requirements of each person to provide testimony evidence preservation of evidence is continuous keeping; not only that, but also asked everyone to provide testimony during the custody of evidence, the evidence remains essentially the same state…… The more important the authenticity of evidence, the more negative the possibility of change or substitution. If the chain of evidence is broken, the evidence may not be adopted. In the future of our country to improve the legislation of electronic data, you can learn from this standard.
In addition to the basic standards, in the implementation of the preservation of electronic data, but also to distinguish between different objects, different security properties (such as passive search, seizure or active type, such as monitoring, surveillance, etc.). All kinds of specific types of evidence preservation procedures, preservation form and technical requirements are different, but the majority should include preservation of preparation, preservation and preservation of the implementation and rehabilitation program etc.. In the high-tech electronic data preservation complex and constantly, procedural justice is the basis of act preservation still justified, is to maintain the credibility of act preservation and preservation of the object has the qualification of evidence (admissibility) and proof of the fundamental force.
Based on the requirements of procedural justice, in the preservation of various types of electronic data, it is necessary to abide by the following legal principles and the corresponding institutional norms:
First, strictly abide by the principle of confidentiality. In the use and processing of various types of electronic data, should pay attention to keep secrets and protect the legitimate rights and interests of the parties and related personnel. For those who do not constitute a crime, search, seizure, interception of electronic data shall be destroyed according to the procedures prescribed or returned.
Two is to protect the process of supervision. Including the relevant electronic data preservation subject in the preservation of simultaneous video camera and archive related evidence materials and self supervision, and supervision by the procuratorial organs to present or invite case and disinterested third witnesses of the external supervision.
The three is to protect the right of presence and the right to know. For passive search, seizure and other Preservation Act, the relative person’s right to be present should be given. For monitoring, monitoring and other active security behavior, learn from the practice of some countries, before the trial, should be given to the relative person to obtain the right to use the data obtained, aware of its production process. It is possible for the relative person to access the information in the stage of the evidence discovery before the court, and the opposite party may also object to the illegal or improper acts in the preservation procedure in the course of the review. Extraterritorial law has been more mature legislation, can be used for reference.
In short, the characteristics of network transaction crime intelligence, concealment, unboundedness and electronic data of its complex variable, called for the establishment of electronic data should preserve system objectively, also only in this way can guarantee the realization of criminal procedural justice punish network transactions.
For ease of editing, abstracts and notes have been omitted
(this article has nothing to do with the public number)
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