Research On The Procedure Of Collecting And Obtaining Electronic Data In The View Of Power Control

With the development of information technology,electronic data plays an increasingly important role in criminal investigation.In order to standardize the evidence collection procedure of electronic data,the criminal procedure law of our country confirms the evidence status of electronic data,and then makes specific provisions on the procedure of collecting electronic data by investigation organs.However,because our country has been awarded attaches great importance to the indictment,and neglect of power supervision and restraint,as a result,in the practice of electronic data investigation and evidence collection,there are such problems as the imbalance of the qualification and authority of the subject of evidence collection,the expansion of the scope of evidence collection,the misplaced use of evidence collection measures,and the lack of effective supervision in the process of evidence collection,which increase the risk of power abuse and may improperly interfere with the basic rights of citizens.Therefore,this paper,from the perspective of power control,based on the reality of the collection of electronic data by the investigation organs in China,combined with the relevant provisions of foreign countries ruled by law,makes an in-depth study on the procedure of electronic data investigation and evidence collection.The evidence collection procedure of electronic data investigation under the vision of power control belongs to the important content of investigation system and evidence system.In advancing the reform of trial centered lawsuit system,comprehensive implementation under the background of the referee rules of evidence,promote our country electronic data investigation evidence collection procedures should be positive real challenges and opportunities,fully embody the legitimacy and fairness of the investigation procedure,the effective control of the expansion of indictment,ensure the legal rights of the citizens,is studied.This paper is divided into five chapters.The first chapter is an introduction to the basic category of electronic data investigation forensics procedure.The basic category involves the concept definition,type analysis and elements of power consideration of electronic data investigation forensics procedure.In the part of defining the concept of electronic data investigation and evidence collection procedure,we first define the concept of electronic data,analyze the characteristics of electronic data,and then put forward the exact meaning of electronic data investigation and evidence collection procedure,which refers to the process of collecting,extracting,preserving,fixing,examining and analyzing electronic data when investigating organs handle criminal cases.Because the power of investigation can only be exercised by investigators,the procedure of investigation and evidence collection reflects the exercise process of the power of investigation.In the part of analyzing the types of electronic data investigation forensics procedures,according to the different purposes of collecting electronic data,the electronic data forensics procedures can be divided into the forensics procedures for achieving the purpose of proof and the forensics procedures for exploratory purposes.According to the different functions of the investigation subjects,the electronic data forensics procedure is divided into joint forensics procedure and independent forensics procedure.According to the different existing states of electronic data,the electronic data forensics program is divided into dynamic and static electronic data forensics program.According to the different collection measures of electronic data,the electronic data forensics procedure is divided into compulsory investigation measures and their implementation procedures,and arbitrary investigation measures and their implementation procedures.In the part of power consideration factors of electronic digital forensics procedure,the author focuses on the authority of forensics subject,the scope of forensics object and the strength of forensics measures,as well as the relationship between each element and the power of investigation.The second chapter is the theory of power control in the procedure of electronic data investigation and evidence collection.The theory of power control is the theoretical basis of the evidence collection procedure of electronic data investigation,which plays an important role in the supervision and restriction of the power of investigation.In the theory of power control,it focuses on the logic of power control,the theory of human rights protection and the theory of balanced adjustment.In view of the logic of power control,this paper analyzes the mode and principle of power control respectively.Firstly,from a worldwide perspective,in order to prevent the expansion and abuse of the power of investigation in the process of electronic data investigation and evidence collection,three modes of restricting the power of investigation have been formed,namely,the model of legal modesty,the model of due process and the model of power supervision.Secondly,combining with the actual situation of our country,it is considered that the principle of procedural legality and the principle of proportionality are of great significance in the construction of the procedure of electronic data investigation and evidence collection.In the part of human rights protection theory,this paper first analyzes the connotation and characteristics of the basic rights carried by electronic data,including data property right,data privacy right and personal information right,and then investigates how these basic rights set the boundary for the investigation organs to exercise the power of collecting electronic data.On this basis,the author puts forward that when collecting electronic data,the investigation organs should balance the relationship between effective evidence collection and protection of citizens’ basic rights,give consideration to justice and benefit value,and realize the purpose of cracking down on crime and maintaining social security.In the part of equilibrium adjustment theory,the author firstly explains the basic connotation of the theory,analyzes the theoretical assumption in the first year of the Fourth Amendment,and analyzes the factors that impact the balance of power and rights.Then,by examining the six scenarios in which the equilibrium adjustment theory is applied,this paper explores the influence of different restraining factors on the investigation efficiency,so as to determine a dynamic mechanism of "equilibrium and adjustment" to explain the theoretical development of the Fourth Amendment,and respond to the technological development and the changes of judicial practice.When a new tool or method may lead to the expansion or reduction of the investigative power,the court will adjust the protection degree of the Fourth Amendment and try to restore the previous balance of the amendment,so as to maintain a dynamic balance between the investigative benefit and the protection of rights.The third chapter is about the dilemma of power control in the procedure of electronic data investigation and evidence collection in China.Under the background of big data and informationization,investigation activities are characterized by stronger technology and higher efficiency.The investigation power in the process of electronic data investigation and evidence collection is gradually enhanced and expanded outward,which increases the risk of power abuse.Electronic data investigation evidence collection procedures of power control difficulties mainly reflected in four aspects: first,in terms of forensic subjects,there is an imbalance between the qualification and authority of investigators to obtain electronic data,which is manifested as the imbalance in the construction of forensic laboratories and the lack of technical ability of forensic subjects,which requires the assistance of technical personnel from third-party institutions,leading to the power extension of forensic personnel.Second,in terms of scope of evidence collection,electronic data attributes become more complex,at the same time,the investigation evidence collection space extend from physical field to virtual field,the boundary of the forensics behavior become blurred,and the ability of the investigation organ for electronic data to strengthen gradually,forensics object scope expands unceasingly,easy to cause the excessive collection of electronic data,and then give legal right of the citizen’s right of privacy and right of personal information and other threat.Thirdly,in terms of forensic measures,it is easy to confuse the search of electronic data with the inspection of electronic data,the online extraction and remote inspection of electronic data,the acquisition of electronic data and technical investigation measures.The misplaced use of the above evidence-gathering measures by investigators may lead to the lowering of the applicable threshold of electronic data evidence-gathering measures,which is disproportionate to the purpose of investigation and the complexity of procedures.Fourthly,in the aspect of procedural restriction,the investigation organs have limitations in the internal supervision of electronic data forensics personnel and their forensics behavior.At the same time,the effect of external restriction is not good,which leads to the problem of irregular investigation and forensics behavior.The fourth chapter is a comparative study of power control in extraterritorial electronic data investigation forensics procedure.It focuses on the electronic data detection and forensics procedures of the main representative countries outside the region-the United States,Germany and Japan,and makes a comparative analysis.The procedure of electronic data investigation and forensics in the United States shows the characteristics of controlling the investigative power with the protection of rights.On the one hand,the procedure is brought into the analytical framework of search,and the standard of consideration is transformed from property right to privacy right.On the other hand,with the development of technology,the differences between different types of electronic data are narrowing,while the power of restriction of rights is expanding.The paradigm of German electronic data investigation forensics procedure is power paradigm,so it focuses on defining the means,purpose and practical necessity of evidence collection and other contents directly related to investigation power.On the whole,the electronic data forensics procedure in Japan presents the characteristics of export-oriented cooperation,and the cooperation between the third party organizations and the investigation authorities is limited.However,the qualitative nature of the electronic data investigation forensics means in Japan is subject to the dual framework of arbitrary investigation measures and mandatory investigation measures.Then,this paper compares the initiation procedure,implementation procedure and supervision procedure of electronic data investigation and forensics in the United States,Germany and Japan one by one,so as to provide inspiration for improving the procedure of electronic data investigation and forensics in China.Because the legislative mode of our country is greatly influenced by the civil law system countries,especially the law of Germany,so our country is closer to the power control mode of Germany.Therefore,the German law has more reference significance to the improvement of the procedure of electronic data investigation and evidence collection in China.At the same time,the definition of new investigation techniques,evidence collection measures and the protection of privacy in American and Japanese legal cases are still of reference value.The fifth chapter is the perfect path of power control in the procedure of electronic data investigation and evidence collection in China.This paper starts from the main body,object and measures of electronic data investigation and evidence collection to improve the initiation,implementation and supervision procedures,so as to promote the standardization and institutionalization of electronic data forensics activities.First,the starting procedure of electronic data investigation and evidence collection should be improved,including the application procedure,the examination procedure and the limitation rules of the scope of evidence collection.In the aspect of application procedure,firstly,it is clear that the subject of application of electronic data investigation and evidence collection should be investigators with investigation power.Secondly,the application stage of electronic data investigation and evidence collection application procedure should be appropriately expanded.The application procedure should not only be applicable to the investigation stage after filing,but also include the preliminary investigation stage before filing.Finally,standardize the document setting and filling of electronic data investigation and evidence collection application.Second,the implementation procedure of electronic data investigation and evidence collection should be standardized.Firstly,it is necessary to standardize the qualification of the subject of electronic data investigation forensics,including updating the technology and equipment of electronic data forensics,reasonably defining the admission qualification of forensics personnel,and optimizing the configuration of laboratories and forensics personnel.Secondly,it is necessary to establish a professional team with electronic data forensics qualification within the investigation organs,in order to enhance the technological level of electronic data investigation and forensics.Thirdly,it optimizes the mode of evidence collection assisted by technical experts to improve the quality and efficiency of electronic data forensics.Finally,in order to promote systematic of the electronic data forensics measures,should be in arbitrary investigation measures and the dualistic framework of compulsory investigation measures in combination with different data types,considerations forensics measures on the degree of intervention of fundamental rights,and forensics measures can be divided into three categories: the arbitrary investigation of basic rights are not intervention measures,mild intervention the arbitrariness investigation measures and serious interference of basic rights of fundamental rights of compulsory investigation measures.Third,make clear the termination procedure of electronic data investigation and evidence collection.This procedure means that after the end of the investigation procedure,the criminal investigation department of the public security organ transfers the electronic data and other evidential materials to the legal department for comprehensive review before they are transferred for examination and prosecution.When examining the electronic data and other file materials,emphasis shall be placed on examining the authenticity,legality and relevance of the electronic data,so as to ensure the electronic data’s evidential qualification and proof power.Fourthly,the restriction procedure of electronic data investigation and evidence collection should be perfected.First of all,the internal supervision procedures of the investigation organs should be improved from the aspects of the authority of the electronic data,the real-time and on-site supervision of the evidence collection behavior,and the ethics education of the evidence collection personnel.Then,by strengthening the review and supervision of the procuratorate,court and other neutral institutions on the acquisition of electronic data by the investigation organs,and improving the relief channels of the data related persons,the effective restriction on the investigation and evidence collection activities can be realized and the defects of the internal supervision of the investigation organs can be made up.Finally,we should make a comprehensive analysis of the procedural sanction and the supervisory relief procedure of electronic data forensics,and build a legal consequence system with the exclusion rules of illegal electronic data as the core.