Research On The Application Of Forced Investigation Measures In Electronic Data Collection

With the extensive application of intelligent equipment and the Internet,the degree of information has been deepened,the information exchange becomes an indispensable part of life,the electronic data is becoming more and more important in the criminal justice field.The electronic data was formally written in the Criminal Procedure Law in 2012,establishing its legal status as one of the types of criminal evidence.China's electronic data collection system is in its infancy,forensic mode with the development of science and technology are also changing,which involves the types of forced investigation are not the same,and because of its large data,difficult to distinguish and other characteristics,if investigators' investigative measures are improperly applied,will result in citizens of property rights,privacy and other serious damage,the investigation of electronic data should be handled with caution.The judicial reform centered on the trial is gradually deepening,and the State Supervision Commission is about to set up,the prosecution power will be stripped,the functions of the investigation and the distribution of power between the prosecution and the police need to be redefined.In the process of criminal investigation,the forced investigation measures are an important means to ensure the smooth progress of investigation,once the forced investigation is carried out,it means that the legitimate rights and interests of citizens will inevitably be a certaindegree of damage.Although the main function of the criminal procedure system is to punish criminal acts by legal means,its other task is to restrict the state's criminal power through legal process and prevent the abuse of the power,in the process of ensuring the punishment of the crime,through strict procedures to protect the criminal proceedings in the parties to the legitimate rights and interests.Judicial practice,the investigators for the electronic data collection system is still in the exploratory stage.Based on the background of judicial reform,this paper studies the application of forced investigation measures in electronic data forensics,and promotes the development of forced investigation system in China,and provides ideas for the investigation of other kinds of evidence.This paper is divided into four parts,the first part focuses on the basic concepts of electronic data collection and forced investigation measures.Firstly,the basic connotation of electronic data collection and the value of collection behavior are introduced.Electronic data collection method is complex,in judicial practice,generally based on whether the electronic data carrier distinction,the main investigation behavior is search,seizure,freezing,technical investigation;the electronic data in addition to the property rights of citizens,and also greatly related to the privacy of citizens Rights and freedom of communication,we should pay more attention to protect the civil rights.Secondly,the concept of forced investigation measures and the basic principles of application are introduced.Forced investigation means the national public power,once carried out will damage the rights of citizens,but the relative,there is arbitrary investigation.The application of arbitrary investigation can better improve the efficiency of detection and protection of civil rights.But the forced investigation is an important means to ensure the smooth investigation,the application process should pay attention to three basic principles: the principle of legality,proportionality and the principle of judicial review.The second part is the analysis on the problems and causes of the application of forced investigation measures in the process of electronic data collection in China.From the point of view of practical operation,the main problems of forcedinvestigation measures are as follows: First,how to use investigation measures in electronic data collection,electronic data is not within the scope of search,seizure,but the practice in accordance with the search,seizure operation,technical investigation measures and online extraction of electronic data is not clear distinction,practical operation of the existence of confusion.Second,the lack of judicial review for forced investigation,the investigation shall be determined and implemented by the investigating organ at its sole discretion.Third,the restrictions imposed on the forced investigation procedure are too low,so it difficult to restrict the arbitrary application of the forced investigation.Fourth,there is no specific description of the search warrant,will result in the investigation out of control.Fifth,the relief process is not perfect,it's difficult for the parties to realize the relief of illegal investigation,the electronic data is not included in the scope of national compensation.The main reason for the above problems is the development of China's electronic data collection system is too short and the slow development of forced investigation system caused.The third part is the study of extraneous electronic data collection in the application of forced investigation measures.Some foreign electronic data collection system has been at the forefront,and is more systematic.For the application of forced investigative measures,whether electronic data or other types of evidence,many countries have adopted the principle of writ doctrine,the investigating authorities to implement forced investigation requires the approval of the judiciary,and need to meet certain standards,illegal investigation also has the corresponding relief measures.The same time,the technical measures that are often applicable in electronic data collection,its scope of application is strictly limited,the applicable standard is also more stringent than the general forced investigation.Compared with foreign systems,the paper may provide reference for the research of forced investigation system in China's electronic data forensics.The fourth part puts forward the suggestion of forced investigation measures in electronic data collection.Combined with foreign advanced legislative experience,our investigation should establish the principle of arbitrary investigation,andimprove the investigation system.The application of forced investigative measures should establish three basic principles of the principle of legality,proportionality and the principle of judicial review.According to the different forms of electronic data,static electronic data adoption of search,seizure means,dynamic electronic data adoption of technical investigation,but if the investigators enter the system by secret means to obtain electronic data,should also be identified as technology.The initiation of forced investigation measures shall be strictly grasped from the start mode,the standard.A certain relief procedure shall be set up to restrict the use of investigation,and protect the legitimate rights of citizens.