The Judicial Application And Improvement Of Rules Of Fictional Originals Of Electronic Evidence

Electronic data is different from traditional evidence types,which has the characteristics of intangibility and destructibility,so it has certain particularity in the application of the original rules.The first part of this paper starts from the basic concepts and characteristics of electronic data,and focuses on the characteristics that affect the application of the original rules to electronic data.For example,the intangible characteristics of electronic data make electronic data need to be presented in court through screenshots,printing and other methods;The characteristic that electronic data can be copied without mirror image makes the value of the copy and the original as evidential materials converge.These characteristics of electronic data make a breakthrough in the application of the original rules.The author analyzes the basic connotation of the best evidence rule and the original rule,and then leads to the discussion of the original rule of electronic data.In order to solve the problem of obstacles to the identification of electronic data originals,the academic community has put forward different theories such as "original carrier theory","pseudo original theory",and "mixed standard theory".Through the discussion of the main points of different theories,the advantages and limitations of different theories,the theme of this paper is proposed,which can solve the obstacles to the application of electronic data original rules.The second part of this paper focuses on the specific content of the "rule of the original copy",including the conditions for the identification,operating procedures and legal effect of the "rule of the original copy".This part deeply expounds the institutional connotation of the "rules of the original copy",and systematically combs the applicable conditions of the "rules of the original copy" in combination with academic theories and the provisions of current laws and regulations: analyze the conditions for the identification of the "rules of the original copy" from the three aspects of substantive conditions,formal conditions and identification subject;This paper probes into the operation procedure of "the rule of making original copy" from the three links of adducing evidence,certification and cross examination;This paper analyzes the legal effect of the "original copy rule" from the perspective of the court’s acceptance of evidence,the perspective of the evidence provider,and the perspective of the other party,providing ideas for the scientific application of judicial practice.In the third part of this article,through the retrieval and statistics of the judicial cases that apply the "rule of making original copies",we found that there are two major problems in the application of the rules,namely,partial belief that "making original copies" harms the opposite party’s right of cross examination,and the failure of the rule of making original copies without original copies.Through the analysis of the judicial cases,the writer objectively presents the impact of the above application difficulties,and then follows the process of judicial practice,from the pre-trial stage In the stage of evidence exchange and the stage of examination,the causes of the dilemma of the application of the rule of "original copy" are analyzed in depth one by one.The fourth part of this paper proposes solutions to the problems and reasons described in the third part from the pre litigation stage and the review stage: in the pre litigation stage,the parties can use notarization and blockchain certificate storage technology to extract evidence and preserve evidence,so as to ensure that the electronic data remains complete and intact in the process of extraction and preservationTo clear up the obstacles for the identification of "original copy" of electronic data;In the review stage of the People’s Court,the verification mode of combining traditional evidence with electronic data evidence is adopted,with particular emphasis on combining the review of electronic data ancillary information,and determining whether electronic data has the effect of "original copy" by integrating the whole case evidence.Through the analysis of the fourth part of this paper,the author puts forward some ideas to solve the dilemma of the application of the "original copy rule" in electronic data in practice.