Research On The Rules Of Network Remote Inspection Measures Of Electronic Evidence In Criminal Proceedings

The development of Internet technology has greatly impacted the forensics model of extracting electronic evidence and its storage media together.In the case of network and cloud storage,there are objective obstacles in obtaining storage media in many cases.It has become an inevitable trend to focus on the separation of electronic evidence collection measures.As one kind of the separation of electronic evidence collection measures,the rules for network remote inspections are mainly distributed in the 2016 “Regulations on Electronic Evidence”and the 2019 “Rules for Collection of Electronic Evidence”.The standard of distinction between it and online extraction and technical investigation is not clear and there is confusion.Although its name is "inspection",it is actually a compulsory investigative measure,which is more in line with the connotation of search.Network remote inspection measures have been widely used in criminal justice practice and still expand now.On the one hand,analyze the rules to figure out scope of application,procedural guarantee and other rules of the network remote inspections.On the other hand,conduct empirical research on the judgment documents to examine the operation situation of the network remote inspection measures,promote understanding of the specific objects,methods and situations,pay attention to the form of trial evidence,and study some samples of judgment documents to analyze the content of the defendant’s objection and the way the judge handles the objection.It is found there are some problems in the practice of criminal justice,such as the confusion of other online electronic evidence investigation measures,lack of approval and supervision procedures,incomplete chain of custody of electronic evidence,and the lack of procedural sanctions on the network remote inspection measures.To sum up,there is insufficient procedural control over compulsory investigations.The degree of compulsory investigation of network remote inspection measures has not been correctly recognized,and it tends to be categorized as arbitrary investigation in practice.For many problems in practice,we can seek enlightenment by examining mature system experience abroad.The control of electronic evidence collection in the United States establish on the protection of privacy.According to the Fourth Amendment to the Constitution,investigative agencies must obtain a warrant issued by the judicial authority to search for electronic evidence and strictly follow the requirements of the warrant.At the same time,it has established many standardized procedures for collecting evidence.Provide clear guidance to investigators.Germany has adopted two methods to authorize and intervene measures for remote collection of electronic evidence.One is a system for remote access to documents,which incorporates remote electronic evidence into the object of search execution,and the other is the establishment of a strict online search application system.The practice of the civil law system in seeking legality basis in traditional criminal litigation investigation measures has important reference significance for our country to standardize the network remote inspection measures.To optimize the relevant rules of network remote inspection measures,the general idea is that the investigation should be included in the investigation system of Criminal Procedure Law.It is an ideal way to classify it into criminal investigation measures and establish the electronic search system.However,no matter how it is incorporated into the existing investigation system,as a kind of compulsory investigation,the key is to improve the corresponding rules reflecting the principles of judicial review and writ.On the one hand,it is necessary to implement the principle of proportion to limit the scope of application of network remote inspection measures and refine the application requirements.On the other hand,the procedure control of network remote inspection measures should be strengthened by clarifying the subject of evidence collection,strengthening the examination and approval mechanism,limiting the scope of execution,stipulating the obligation of data destruction,establishing the chain of custody of electronic evidence and so on.Finally,it is necessary for the court to implement substantive review at the trial stage to restrict and standardize the investigation and evidence collection activities of investigators with the subsequent trial procedures.