Research On Ascertaining Rules Of Electronic Data Authenticity In Civil Procedure

The legal status of electronic data as an independent type of evidence in the2012 " Civil Procedure Law " has been confirmed,it is playing an increasingly important role in the legal factual determination and the process of resolving conflicts and disputes.However,the determination of the authenticity of electronic data has not yet put forward specific and operable legal norms,leading to unsatisfactory results in the adoption of electronic data.How to identify the original and copy of electronic data,how to identify whether the electronic data has been tampered with or deleted,how to determine the probative power of electronic data and other series of problems need to be resolved.Because different judges have different knowledge background and cognitive understanding of the differences,sometimes the same type of electronic data to determine the results of different or even the same case,different judgment still occurs,and the ensuing confusion in the application of the law and the parties to the fixed confidence in evidence are to a certain extent reduced the judicial credibility.Therefore,how to improve the authenticity of electronic data in civil litigation rules,better promote its judicial practice,break the barrier between law and information technology,the realization of the rule of law and the benign interaction of technical governance is particularly important.Through the selection of electronic data authenticity judge judicial cases for empirical analysis,it has been founded that electronic data authenticity rules are not yet a unified regulation of the law also to the case officer in judicial practice out of the problem: Firstly,it is the original form of evidence was transformed,electronic data was transformed into audio-visual information and documentary evidence to be used in the highest frequency,most of the electronic data in the evidence display link appeared in the trend of copy In the process of transformation into other forms of evidence,there is a high risk of distortion.Secondly,the existing rules of authentication are formalized,in the custody of electronic data and forensic links ignore the role of technical means in the review of electronic data forensics,in the review of electronic data identity of the court investigation procedures exist in a formal problem.Thirdly,the current preservation norms lagging behind.In the mainstream use of court preservation,notary public preservation,third-party institutions preservation,the parties themselves to retain the comparison between different preservation methods to bring the effectiveness of electronic data admissibility,the third-party depository qualifications,technical specifications and neutrality has been questioned by many.Fourthly,the role of proof should be dwarfed,especially in the case of coexistence with traditional evidence,electronic data itself is easy to tamper and high-technology led to its evidentiary value is depreciated,the role is underestimated,the status is marginalized and other phenomena are not uncommon.In view of the dilemma encountered in the process of determining the authenticity of electronic data,this paper tries to put forward the following tentative suggestions from the theoretical and practical aspects: Firstly,it is to improve the theory of electronic data originals.On the one hand,the precise copy of the copy is stipulated as the original,at this time,the electronic data copy has the same ability to prove with the original;on the other hand,the electronic copy that meets the specific criteria is regarded as the original,and it is suggested that the statutory criteria including the party’s self-identification,notary public,and so on,and the standard of the parties’ prior consultation,such as the agreement to stay in the third-party depository electronic data copy can be equivalent to the original.The second is to optimize the identification of electronic data.It is mainly from the expansion of the scope of identification categories,unified identification technical standards,improve the identification of three aspects of the expression of opinion to continue to narrow the technical gap between the judge and electronic data.It is also to improve the electronic data preservation.Through the refinement of electronic data judicial preservation provisions,clear electronic data notary preservation standards,enhance the status of third-party institutions preservation,and work together to build a more adaptable to the judicial needs of electronic data preservation model.Finally,it is to provide a possible operation path with the help of electronic data authenticity determination hierarchy theory and electronic data authenticity review logic to the authenticity determination of individual evidence of electronic data and the comprehensive authentication of electronic data authenticity.