Research Works Related to the Use of Electronic Evidence

value in the investigation process, it exists in a stored state or transmitted via computer (Association of Chief Police Officers of England, 2011).

The authors based on the differences of electronic evidence compared to traditional evidence to state some specific characteristics of electronic evidence such as: (1) It is not directly perceived by human senses, but must be through electronic devices, equipment, and technology that act as an intermediary; (2) electronic evidence is not limited to national borders; (3) electronic evidence is easily changed unintentionally or intentionally; (4) technology advances rapidly, causing new problems to appear frequently; (5) the original and copies of electronic evidence are of the same quality, making it difficult to distinguish; (6) metadata reflects the context in which electronic evidence arises and forms, and is itself evidence.

On that basis, the authors propose principles, methods, measures, and procedures for investigating and collecting electronic evidence; the way to accept and use electronic evidence is also mentioned by the authors of the articles. However, all of the above issues, from theory to positive law, are built on different separate perspectives of electronic evidence. Especially the perspective of the technological element of electronic evidence. For example, in the definition, some authors equate electronic evidence with electronic data. This is incorrect because electronic data is a trace recorded by machines, means, and electronic devices or operated according to the actions of individuals or legal entities, corresponding to a corresponding technological process. Therefore, electronic data cannot be equated with electronic evidence. Electronic data can become electronic evidence when it is personalized, identified with the specific individual, legal entity or agent that created it, and must undergo a process of human cognition and thinking.

In addition, in the characteristics of electronic evidence, people also rely on the external differences between the two types of evidence to describe the characteristics. This does not show the nature of electronic evidence. In the method and process of collecting electronic evidence, people also focus on the technology to detect and collect electronic data, with adaptive technologies, without mentioning the recording methods, effective measures, and appropriate processes to help check and evaluate the collection process. In the evaluation, acceptance, and use of electronic evidence, the documents are also only based on the application of existing positive law, determining the legal elements of evidence to accept and put into use, and performing the obligation to prove.

In general, the articles have not addressed the root causes of the problems related to the collection, acceptance and use of electronic evidence from both theoretical and practical perspectives. The reason may be that these works have not clarified the nature, as well as

has not yet provided appropriate problem-solving methods for the main contents of electronic evidence such as collecting, evaluating, accepting, and using electronic evidence.

Domestically: There are not many articles on electronic evidence. Existing articles mainly explain legal provisions related to electronic evidence, sources of electronic evidence are electronic data, collection of electronic data, seizure of electronic devices. Currently, there are no articles specifically researching the collection, acceptance and use of electronic evidence. Furthermore, the articles have not seen the connection between the requirements of proof, legal requirements and technological requirements which are an objective necessity of electronic evidence.

1.1.5.2 Research issues to address research objectives

To solve the research objectives of the topic, it is necessary to rely on existing research results, and at the same time overcome the limitations of the research works mentioned above. The study applies domestic and foreign theories and positive laws to Vietnamese legal practice, meeting the objective requirements of using electronic evidence. To achieve the above, the author of the topic must have a comprehensive, comprehensive view, building all issues of collecting, accepting, and using electronic evidence, based on the origin and nature of the concepts. The formation of evidence and electronic evidence, with a perspective on the dialectical relationship between evidence and electronic evidence - electronic evidence is a special case of evidence; and the organic connection between the requirements of proof, legal requirements and technological requirements is an objective and inevitable requirement of electronic evidence. For these reasons, the researcher finds that the research issues raised to solve the research objectives of the topic are: (1) Solving theoretical problems of collecting electronic evidence. The impact of the agents is a serious challenge to the process of collecting electronic evidence, in response to the practical requirements of collecting electronic evidence effectively, helping the Court and other judicial agencies to enforce justice and fairness; (2) to accept electronic evidence according to current law is necessary, but in response to the increasing need for many types of electronic evidence to be discovered, how should the law change to be appropriate, to accept types of electronic evidence to keep up with the pace of technological development, while satisfying the requirements of proof, technological requirements and legal requirements; (3) Using electronic evidence to fulfill the obligation to prove is the final step in enforcing justice, therefore, there must be specific principles so that the subjects participating in using electronic evidence have a level playing field before the law. Or the legal constraints in using evidence to prove legal events, performing obligations, responsibilities, and the right to use electronic evidence to prove whether the legal situation needs to be changed or not; (4) on the basis of the results

Research the topic of proposing amendments and supplements to Vietnamese law, in accordance with the objective requirements of electronic evidence and law enforcement practices.

1.2 Theoretical basis of research

1.2.1 Theory of evidence in the common law system

Electronic evidence is a type of evidence, so when studying electronic evidence, it is necessary to base on the theoretical foundation of evidence and the positive law system of evidence. With the Common Law system, we consider two typical theories as the basis for the research on the topic of Vietnamese Law on electronic evidence, which are: New evidence scholarship , A foundation theory of evidence , and the current evidence law system of England and America. This system of theory and positive law has effectively solved the problems arising in the use of evidence and electronic evidence. Therefore, the author believes that it is still a solid theoretical basis to partly solve the research objectives of the chosen topic.

Agreeing with the New evidence scholarship author Michael S. Pardo in 2013 published The Nature and Purpose of Evidence Theory in the Vanderbilt Law Review. According to the author, the use of evidence should focus on two main aspects of evidence: Admissibility and sufficiency, the relationship between these aspects. The author specifies the use of evidence at 3 levels of constraints. First, the micro-level constraint : Each item of evidence must provide or demonstrate relevance, the level of relevance to a specific legal event, with a probability value of the event's likely occurrence. Second, the macro-level constraint : It must provide or rely on a solution

reasonable presentation of the standards of evidence. This means that the evidence must be qualified to perform the burden of proof, including the burden of proof of form and the burden of proof of content. In other words, the evidence must be published in the correct procedure and at the same time be used to perform the burden of proof in a convincing manner. Third, the integration constraint ( The integration constraint ) it must provide or rely on a valid factual content about the relationship between the contents at these two levels, the items of evidence must be compatible with each other. Finally, the evidence must provide or rely on a reasonable explanation of how the micro and macro levels fit together, compatible with each other.

From the perspective of positive law, in countries with the Common Law system such as England and the United States, the issue of evidence is regulated by the Law of Evidence and the Law of Civil Procedure or the Law of Criminal Procedure. Accordingly, the Law of Evidence can be considered as the substantive law, providing general rules for accepting evidence, establishing rules on the concepts of types of evidence and legal requirements for each specific type of evidence that must be present, in order to

20 Rule 602. Personal knowledge required.

21 Rule 701. Testimony or opinion of ordinary witnesses.

22 Rule 901. Authenticating or identifying evidence.

23 The evidence must be presented sufficient to support a finding that the truth exists.

put into use as a tool to prove the legal situation that has occurred. The Civil Procedure Law and the Criminal Procedure Law can be considered formal laws, mainly providing measures, methods, procedures, and procedures for the entire litigation process. In the civil field, providing measures for collecting evidence (the US Civil Procedure Law stipulates discovery in Rule 26, Title V) can be understood as one of many measures for collecting evidence carried out through investigation and questioning by the parties or requests from the Court. The Criminal Procedure Law regulates the behavior of subjects participating in the litigation, the litigation procedure, and provides measures for collecting evidence, for example, Rule 16 on discovery and search (the US Federal Criminal Procedure Law).

1.2.2 Theory of evidence in the civil law system

Unlike the Common Law system, the Civil Law system does not find a theory of evidence. The evidence regime is built by countries in conjunction with the Law of Procedure and the law of content. Therefore, the issue of the Law of Evidence under the Civil Law is quite complicated and diverse because each country has its own legal system. The legal systems of France and Germany follow the typical Civil Law system. Currently, we rely on the existing Law of Evidence of France and Germany as a theoretical basis for studying the Law of Evidence on the basis of the Civil Law system.

According to the document “Evidence in Civil Law - France” by Martin Oudin, in France, the Civil Evidence Law is the intersection between the Procedural Law and the Civil Law. The Evidence Law is part of the procedural law, it is governed by general principles stipulated by the procedural law, such as the principle of contradiction, the principle of public hearing or the principle of free disposition, which means that the parties determine the framework of the proceedings. The judge cannot make his decision based on facts that the parties themselves do not present. Evidence also has its own governing principles. The French evidence system is quite rigid, the belief in written evidence is important. However, it is overcome by the validity of evidence agreements. Since the basic rules of evidence are flexible, the Court always recognizes that those rules can be rejected or adjusted by the parties. The civil evidence system does not impose a search for certainty, although the procedure for finding evidence is concerned with legality. An important but unwritten principle in the French Evidence Law system is that no one can create evidence in advance in his favor, for example, his employees cannot testify in his favor. However, there are some cases where it is accepted, such as when it concerns legal events, which may be forced to be proven by any means; or when it concerns commercial disputes, depending on the conditions, a properly kept account may be accepted to act as evidence between the parties.

merchants for commercial instruments (Martin Oudin, 2015). Also in this document, the author mentions many issues on the principles of collecting, evaluating, accepting evidence, and performing the burden of proof in civil lawsuits, considering these principles as the basis for forming evidence in civil lawsuits, through the processes of collecting, accepting and using evidence. In Germany, in the civil field, the Court will only consider the evidence provided by the parties and will not conduct its own investigations. The parties have the right to initiate a lawsuit, counter the lawsuit and must then submit evidence to prove their claims, accompanied by full witnesses if any. The Court is not responsible for forcing the other party to provide evidence in favor of the plaintiff, or to conduct an investigation to collect evidence. The Court's authority to evaluate and accept evidence is within its jurisdiction, and they are free to decide whether or not to accept the evidence. German courts accept the following types of evidence: Court witnesses, witness statements, presentation of documents, examination of parties and expert evidence. From an evidentiary perspective, studying the German Civil Procedure Code, evidence is obtained through the submission of parties to the lawsuit, during public hearings and trials before the trial, the Judge collects evidence through these measures, considers acceptance and makes a final judgment.

In the criminal field, according to the French Criminal Procedure Code, evidence is formed based on the provisions on procedural order, criteria for collecting, accepting, and using evidence through specific types of evidence, or through investigation, litigation, and interrogation measures... In Germany, in the criminal field, the criteria for accepting evidence, methods, and procedural order for collecting evidence are established with rules for each type of evidence. In particular, for electronic evidence, it is determined according to the provisions of Chapter 4 of the German Criminal Procedure Code.

1.2.3 Comment, evaluate and use the theoretical basis of evidence

According to the evidence theory of the Common Law system presented above, evidence is the result of the subjects participating in the proceedings, based on natural and social laws, through the use of reasonable scientific and technological tools and processes, to collect records of events and phenomena related to legal situations that have occurred in human life and social activities. In addition, the doctrines provide criteria for accepting evidence with many different viewpoints, but in general, scholars agree on the common point that there must be criteria for evaluating and accepting evidence. At the same time, scholars also acknowledge that evidence is an essential tool for building hypotheses, using evidence to prove legal situations that have occurred in the past. The Evidence Law and other related laws of the Common Law system do not explicitly state the collection, evaluation, acceptance and use of evidence.

evidence, but all the rules of the Law on Evidence and other relevant laws require the subjects participating in the proceedings to collect, evaluate and accept evidence based on these rules, in order to serve the ultimate goal of using evidence as a tool to exercise rights, obligations and responsibilities to prove, which means using evidence as a tool, building hypotheses to prove the legal situation that has occurred. For the Civil Law system, typically the criminal procedure laws and civil procedure laws of France and Germany, although not directly mentioned, but through the provisions and rules, we can see that, if we want to have evidence to serve the judgment of the Court or other judicial bodies in a fair manner, ensuring justice, we must have valid, accurate and objective evidence. If we want to have evidence, there is nothing other than having to go through different forms and measures prescribed by law to collect evidence; and it must be evaluated and accepted with very clearly and specifically defined criteria, only then can the evidence be put into use, as a tool to prove the truth that happened in the past of a specific legal situation.

Although the theoretical views on evidence in the same system are different, the positive legal systems on evidence of the two systems are also different, but they have the following points in common: Aiming to build laws, rules, and legal provisions related to evidence, so that they can be implemented most effectively, resulting in evidence of high utility value. To do that, the legal provisions related to evidence must be appropriate, creating a legal corridor corresponding to the collection, evaluation, acceptance and use of each type of evidence appearing in objective practice, meeting the requirements of reasonable, convincing and correct proof of legal situations. Vietnamese law on electronic evidence is no exception, ready to move towards creating a legal corridor suitable and favorable for the collection, evaluation, acceptance and use of electronic evidence in the future. Thus, for any legal system to operate effectively in the use of evidence or not, it depends on the provisions of law related to evidence, whether they are appropriate to create conditions for the collection, evaluation, acceptance, and use of evidence to fulfill the responsibilities, rights, and obligations of proof in a convenient, objective, fair, and transparent manner for all subjects participating in the proceedings or not.

Based on the above analysis, to solve the research objectives of the topic "Vietnamese law on electronic evidence", it is necessary to solve the problems of collecting, accepting and using electronic evidence, for Vietnamese law in the present and future, on the basis of the theoretical foundation of the two current legal systems. The study uses the theoretical perspective of the New Perception of Evidence of the Common Law system, accepting the results of forensic science, specifically digital forensic investigation, in the work.