导　　师： 赵惊涛

学科专业： 030106

授予学位： 硕士

作　　者： ;

机构地区： 吉林大学

摘　　要： 随着信息时代的到来,计算机技术和网络技术的迅猛发展,电子信息技术的广泛应用,电子通讯技术和计算机网络技术深入到人们生活的方方面面。电子证据在我国虽然已经有相关的立法,但尚未形成系统的法律体系,缺乏明确的运用规则。特别在刑事诉讼中电子证据的收集审查方面缺乏相关的法律规定。本文对刑事诉讼中电子证据的收集和审查、刑事诉讼中电子证据的法律定位问题、刑事诉讼中电子证据的取得问题进行了初步的分析和探讨。 As people pace into an era of information, with booming computer technology and internet technology and popular application of electronic communication technology, influences from electronic communication technology and computer network technology run deep into people’s everyday life. From the extensive use of E-commerce, to IC Card of public transport in daily life, to the very means of amusement among friends and families to keep in touch--QQ and E-mail, technology has become a doubled-edged sword which provides convenience, on one hand, for work and study, on the other hand for criminal suspects. In the judicial practice, cases concerning electronic evidence emerge like mushroom. From Internet civil tort and disputes on intellectual property infringement in an earlier time, to criminal cases involving E-evidence /(electronic evidence/); from the early case of Maxstation Company’s appeal for reputation infringement from Wang Hong, to a recent case of Sina.com’s suing Sohu.com for copyright infringement and unfair competition, to the Internet virus Nimaya case and the case of Xu Ting in Guangzhou, none of them were left without E-evidences which were recognized as case fact basis, key evidences in investigating criminal responsibilities, or the sole evidence. Although China has relevant legislation concerning E-evidence, it hasn’t formed a legal norm system, and also lack specific rules of use. Especially, correlated laws are inadequate in E-evidence acquiring and examining procedures in criminal lawsuits. This paper will mainly analyze and probe into those acquirement and examination of E-evidence in criminal lawsuits. This paper consists of the following parts: Chapter 1 will provide the readers with definition, characteristics, and classification of E-evidence. In this chapter E-evidence is defined as any material and its derivatives in electronic form for a testifying purpose; or in other words, any evidence created by electronic technology or electronic appliances. Electronic form refers to the existential form of any information that is generated, transmitted, received, and stored by medium, magnetic matter, optical device, computer memory or similar devices. Derivative refers to affiliated material transformed from material in electronic form. That is to say, E-evidence mainly includes evidence in electronic form, derivative in electronic form like electronic materials able to be printed out, and any evidences stored, accessed, transmitted and output by electronic devices or electronic technology. This paper analyzes E-evidence’s six characteristics: 1. objective authenticity, 2. dependency, 3. concealment, 4. high technology, 5. fragility, 6. integrity; it divides E-evidences into static and dynamic evidences according to their forms. The author of this paper considers that with rapid development of computer technology and Internet technology, crime by means of computer and Internet will become increasingly heavier, and it jeopardizes society in an increasing degree, uses high technology as tools and causes difficulty in investigation and evidence collecting. By the comparison between legislation of E-evidence collection in criminal lawsuits in China and abroad, it is revealed that legislation of E-evidence in China is comparatively inadequate and hasn’t evolved into a complete system. It’s necessary to complete it in order to effectively contain and squash computer crime and Internet crime. Chapter 2 will discuss the problem of E-evidence’s legal orientation in criminal lawsuits. It is acknowledged in this paper that the forms and features E-evidence presents is obviously different from those of conventional evidences. Many problems will come into being in judicial practice if E-evidence is simply classified as one type of conventional evidence. Not to mention the booming computer and Internet technology, and their influences running deep into people’s everyday life. By far, crime by means of electronic technologies like computer and Internet technology is becoming increasingly more; to contain and squash crime using those technologies, it is a necessity to define E-evidence as an independent form of evidence. By analyzing laws and regulations relevant to legal orientation in criminal lawsuits in China along with the four theories of E-evidence’s orientation and their defects, this chapter advocates that as E-evidence occupies a more and more important position in judicial practice it is feasible to separately list E-evidence as one type of independent evidence, simulating the way by which newly-added audio-vision materials are listed as one type of evidence in the past. Chapter 3 will focus on the acquirement of E-evidence in criminal lawsuits. After the suspects creating the computer virus Nimaya were successfully captured by the police, China’s first case concerning computer-virus-making were successfully solved, at the same time it was also a case in which computer forensics is applied. In the case-solving process, the source code the police faced with was all electronic document and data, and could easily change. At the same time, E-evidence document is always tied to specific environment, time and space, and for most time is needed on the scene, which will undoubtedly make higher requirement for evidence acquirement. It is necessary to focus on the features and classification of E-evidence in criminal lawsuits and further complete relevant laws and regulations. This chapter analyzes the object, subject, principles and means of E-evidence acquirement in criminal lawsuits, and holds the idea that object of E-evidence collection should include electronic information evidence, affiliated information evidence, and systematic environmental evidence; subject in E-evidence collection should not only cover judicial official who investigate and acquire evidences but also cover electronic technique specialists providing assistance in order to resolve discordance between rapid growth of electronic technology and judicial official’s knowledge in electronic technique. Acquirement of E-evidence should have principles and measures different from that of conventional evidence. Acquirement principles of E-evidence mainly consist of the principle of discretionary investigation for judicial department, the principle of protecting civilian privacy, the principle of offering writ while collecting evidences, the principle of assistance from potential witness, and the principle of using particular technology tool to acquire evidence, etc; according to the classification of E-evidence, the collecting measures of E-evidence include: static E-evidence, by means of seal up and detain, while dynamic, by means of collecting. Chapter 4 will focus on the examination of E-evidence in criminal lawsuits. Whether E-evidence can be adopted as valid evidence for judgment depends on the examination of it. Combing content examined in conventional evidence and the features of E-evidence itself, this chapter mainly analyzes the content of E-evidence examination in criminal lawsuits which mainly involves the examination of E-evidence’s authenticity; due to the characteristics of subjectivity and authenticity in E-evidence itself, this examination falls into to stages--human factor and influences from the external environment; when it comes to examination of the relevance of E-evidence, E-evidence can be confirmed to be relevant only when it is substantive and meaningful to the dispute in a case; examination of E-evidence’s legality mainly begins with evidence-acquiring subject and procedure--if evidence-acquiring subject and its procedure is legal then it is deduced that E-evidence is legal, and at the same time, this chapter also introduces other types of illegal evidences excluded: evidences acquired through gaining access to other’s computer by individual and unauthorized body, evidence acquired by judicial official through gaining access to other’s computer without writ, and evidence acquired by torturing defendant to extract a confession, etc.

关 键 词： 刑事诉讼 电子证据 取得 审查

分 类 号： [D925.23]

领　　域： [政治法律] [政治法律]