刑事电子数据形式真实性证明研究

Research on the Formal Authenticity Proof of Criminal Electronic Data

刑事电子数据与传统证据不同,电子数据相较于传统证据而言具有易复制性、易破坏性等特点,使其更难确定侦查人员所获取的电子数据有无发生改变,因而对电子数据的真实性证明尤为重要。基于电子数据双重载体的特性,真实性层面较为复杂。形式真实性证明作为真实性证明的前置步骤,其重要性逐渐凸显。形式真实性概念是从美国关于电子数据的鉴真内容引申过来的,指的是证据提出者要证明电子数据确实来自于其所称的来源,以及电子数据保持其来源的本原状态,内容未经改变。对电子数据而言,真实性不能简单地理解为内容的真实性,而必须考虑到其形式真实性,只有同时保证这二者的真实性,才能更好地解决证据能力和证明力的问题。而电子证据的形式真实性,具体包括原始载体的真实性和电子数据的真实性。形式真实性是确定证据可采性的先决条件,其性质属于证据能力问题。具体内容为电子证据的原始存储介质未遭到篡改、损毁和污染,其载体未发生形态上的变化;而电子证据数据真实性主要是比对完整性校验值,查看数字签名、数字证书等特殊标识证明其完整性、真实性。

Criminal electronic data is different from traditional evidence. Compared with traditional evidence, electronic data is easy to copy and destroy, which makes it more difficult to determine whether the electronic data obtained by investigators has changed. Therefore, it is particularly important to prove the authenticity of electronic data. Based on the characteristics of dual carrier of electronic data, the level of authenticity is more complex. As the pre-procedure of authenticity proof, formal authenticity proof is becoming more and more important. The concept of formal authenticity is de-rived from the authentication content of electronic data in the United States, which means that the proposer of evidence should prove that the electronic data does come from the claimed source, and that the electronic data keeps the original state of its source, and the content has not been changed. For electronic data evidence, authenticity cannot be simply understood as the authenticity of con-tent, but the authenticity of its form must be taken into account. Only by ensuring the authenticity of both can we better solve the problem of evidence ability and proof force. The formal authenticity of electronic evidence includes the authenticity of the original carrier and the authenticity of elec-tronic data. Formal authenticity is the prerequisite to determine the admissibility of evidence, and its nature belongs to the problem of evidence capacity. The specific content is that the original storage medium of electronic evidence has not been tampered, damaged and polluted, and its car-rier has not changed in morphology;while the authenticity of electronic evidence data mainly refers to comparing the integrity check value, checking the special marks such as digital signature and digital certificate to prove its integrity and authenticity.