电子数据取证的正当程序规制——《公安电子数据取证规则》评析

Due Process Regulation of Electronic Data Collection——Comment on Rules for Electronic Data Collection of Criminal Cases by Public Security Organs

2019年公安部颁行的《公安电子数据取证规则》总体承袭了2016年两高一部《电子数据规定》取证程序的原则及要求,并在效率提高、证据固定、权利保障及回应国际批评上有部分进步,但其仍有不少严重问题亟需解决。坚持原始存储介质一并提取为主会给侦查侵权创造便利,且缺乏针对性、前瞻性;对在线提取、远程勘验、网络技术侦查的整体设计违背了《刑事诉讼法》,甚至与《宪法》第40条相冲突,三者逐步缩限式界定看似科学,实则会给前两者留下扩展空间,也会给侦查及司法人员规避《刑事诉讼法》对搜查、扣押的控制留出余地;在线提取对象有所限制,但境外境内有别,缺乏惩戒;对远程勘验的授权多于限权;对电子数据调取的规制依然不力。我国的电子数据取证规则亟需回到《刑事诉讼法》对搜查、扣押的规制框架下,将在线提取、远程勘验、网络技术侦查均明确归类为强制性侦查行为,并在实体规则上明确启动的条件和证据要求,在程序规则上要求需有类似搜查、扣押、普通技术侦查的授权文书,并对电子数据调取进行严格限制,以维护公民、企业在网络时代的各项基本权利。

Rules for Electronic Data Collection of Criminal Cases by Public Security Organs issued by the Ministry of Public Security in 2019 generally inherits the principles and requirements of Provisions on Issues Relating to the Collection,Extraction and Review of Electronic Data in Handling Criminal Cases jointly issued by the Supreme People’s Court,the Supreme People’s Procuratorate and the Ministry of Public Security in 2016,and makes some progress in efficiency improvement,evidence solidification,rights protection and response to international criticism. However,there are still many serious problems to be solved : sticking to the principle of extracting the original storage media together will create convenience for the investigation of infringement,and lacks pertinence and foresight;the overall design of online extraction,remote inspection and network technical investigation violates the criminal procedure law and even conflicts with Article 40 of the Constitution of the People’s Republic of China,and the definitions of the above three are gradually limited,which seem to be scientific,but actually leave room for expansion for the former two and also leave room for investigators and judicial personnel to evade the control of search and seizure under the criminal procedure law;there are some restrictions on the objects of online extraction,but there are some differences between overseas and domestic,lacking of punishment;the authorization of remote inspection exceeds the limitation of the right;the regulation of electronic data access is still weak. The rules for electronic data collection of criminal cases in China need to return to the framework of search and seizure regulated by the criminal procedure law. Online extraction,remote investigation and network technical investigation should be clearly classified as compulsory investigation,and the starting conditions and evidence requirements should be clearly defined in substantive rules. In terms of procedural rules,it is required to issue authorization documents similar to those for search,seizure and general technical investigation,and to strictly restrict the collection of electronic data,so as to safeguard the basic rights of citizens and enterprises in the network era.