“电子证据”与“电子数据”考辨——以2012版刑事诉讼法对证据制度的调整为背景

Textual Research on the Distinctions between "Electronic Evidence" and "Electronic Data"

"电子证据"与"电子数据",相近而又容易混淆。前者获得了广泛认可与使用,但缺乏统一内涵,可塑性极强;后者使用范围较窄,2012版"新刑诉"颁布后,其地位才上升到证据立法高度。"电子数据"立法看似微观,实则属于"宜粗不宜细"传统立法思维的延续,其视野局限制约了证据法治的长远发展,"电子证据"已被"两个证据规则"明文确认,出于保持法律体系协调、节约立法成本、准确反映事物原貌等价值目标考量,"电子证据"有再度回归高层立法的可能。

＂Electronic evidence＂ and ＂electronic data＂ are two similar but easily confused concepts. The former has been widely recognized and used, but it is very malleable due to lacking a unified connotation. The use range of the latter is narrow, and it has been regarded as the evidence legislation only after the new Criminal Procedure Law was promulgated in 2012. It seems that ＂electronic data＂ legislation is microscopic, but in reality, it is a continuation of traditional ＂macro rather than micro＂ legislative thinking and the limitation of its vision restricts the long-term development of the evidence rule. ＂Electronic evidence＂ has been confirmed by ＂two rules of evidence＂. It is possible that ＂electronic evidence＂ would return to the top legislation for the value objectives, such as to maintain legal system coordination, to save legislation cost, and to accurately reflect the original events or things.