论电子证据的完整性

The integrity of electronic evidence

我国新近证据立法中,电子证据的完整性被普遍误读,并被错误建规立制。该问题系由"完整性"术语在知识转场过程中未经有效对接所致,亦与理论上缺少对传统证据完整性规则的必要整合有关。它不仅引起司法适用混乱,也有损相关立法之科学性、体系性。从制度变迁和司法实践的立场来看,电子证据的完整性同真实性具有特殊的关系,但不能被简单认为是后者的组成部分。它可以被解析出"数据完整"和"覆盖事项完整"双重内涵,其本质在于保障收集提取、固定保管、提交法庭等各个阶段的证据具有同一性。国际上对电子证据的完整性问题采取了不同的规制模式,我国立法中适宜采取混同定位模式。

In recent evidence legislation of China, the integrity of electronic evidence has been widely misread and wrongly regulated This problem is caused by the lack of effective connection of the term “integrity”in the process of knowledge transition, and it is also related to the theoretical lack of necessary integration of traditional evidence integrity rules. This problem not only causes confusion in judicial application, but also undermines the scientific and systematic nature of relevant legislation. From the standpoint of institutional change and judicial practice, the integrity of electronic evidence has a special relationship with authenticity, but it can not be simply regarded as a part of the latter. It can be parsed into the dual connotations of “the integrity of data” and “the completeness of evidence information”. The theoretical essence of the integrity of electronic evidence is to guarantee the identity of evidence during all phases of litigation, including collecting, extracting,fixing, preserving and presenting evidence. Internationally, different regulatory modes have been adopted for the integrity of electronic evidence, and it is suitable to adopt the mixed positioning mode in China’ s legislation.