Subject Carrying Out the Obligation to Prove the Content

This. There are certainly more complex and difficult issues in determining the integrity of electronic evidence with complex technologies. But there is no law in the Vietnamese legal system to apply and implement.

The usefulness of electronic evidence, the Judge also needs to consider and evaluate each type of electronic evidence to be accepted. All electronic evidence submitted by the parties must be assessed for its usefulness to decide whether to accept it or not, or to request the parties to submit more, to complete the step of checking and evaluating the acceptance of electronic evidence, a step in the process of using electronic evidence.

This process is considered one of the conditions for putting electronic evidence into use. The Court continues to use this electronic evidence for publication and later use. Serving the request to prove the event, matter, legal situation that has occurred.

4.3.2.4 Subjects performing the obligation to prove the content

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This is the stage performed by the parties when they perform their obligation to prove. Based on the subject of the request for proof as stipulated in Article 91 of the 2015 Civil Procedure Code and the content of the dispute of the parties, each party uses the electronic evidence they have submitted or collected, forming a hypothesis reflecting their obligation to claim, with tight and convincing arguments to prove that their requests are reasonable and legal, in order to protect their rights.

In scenario 1, the arguments of the plaintiff Ng Company and the defendant Th Company both admitted the exchange and acknowledged the content of the email, so the Judge's judgment was favorable and had the basis of electronic evidence, which was the email. In scenario 2, the defendant did not admit the exchange with the plaintiff via email, did not acknowledge the emails. The Trial Panel could not verify the authenticity of the email, the email server was not in Vietnam so there was no email content to compare, the email address used in the exchange between the two companies was not recorded in the business registration certificate. For the above reasons, the Court rejected the Plaintiff's request. It is clear that the law enforcement agency has not fulfilled its responsibilities because Vietnamese law is still flawed. In scenario 2, to ensure fairness according to Article 15 of the 2015 Civil Procedure Code, in this case the Judge needs to conduct a forensic investigation of the email, or more broadly, a digital forensic investigation in civil matters. This needs to be clearly regulated by law, with the procedures and formalities being very specific in law. The reasons for rejecting the plaintiff's request in situation 2 of the Trial Panel are not convincing. It is impossible that all email addresses and phone numbers used in a company must be recorded in the business license to be legally valid. It is also impossible to say that if the email server is not in Vietnam, the plaintiff's email will not be accepted because of its international, global nature. At the very least, the Trial Panel requires the plaintiff to

The application provides email headers, uses expert opinions to conduct an investigation based on the information obtained, to determine which information is reasonable, before hearing the parties involved in the litigation; finally, the Court must make the most reasonable judgment possible, and cannot reject the request to initiate a lawsuit, because the email server is not in Vietnam.

In summary, in this situation, we have pointed out a number of shortcomings of Vietnamese law that need to be supplemented, completed, procedures, and technological standards to serve the submission, collection, examination, evaluation, acceptance, and performance of the obligation to request, the obligation to prove the form, the obligation to prove the content with digital forensic investigation measures in accordance with international practices for the use of electronic evidence in the civil field.

4.3.3 Using electronic evidence to violate competition law in the digital economy

4.3.3.1 Situation of the US Department of Justice suing Microsoft for monopoly

Microsoft's personal computer operating system in 1998 had an 80% market share, integrating Internet Explorer (IE) web browser software so that any computer using their operating system would automatically use IE to browse the web, preventing the installation of software with similar features. Monopoly has led to unfair competition. In November 1999, the District Attorney concluded that Microsoft had too much market power and had abused this power. On November 1, 2002, the US Federal Judge accepted the antitrust lawsuit between the government and Microsoft, the lawsuit lasted 4 and a half years. The final decision of the Court brought satisfaction to software manufacturers and satisfied investors. The US court decided to allow computer manufacturers to freely purchase Windows operating system licenses, choose application software to install and use on their products, not necessarily Microsoft software, not necessarily dependent on Microsoft products. Microsoft Company is not allowed to use its advantage of occupying a high proportion of the market to cause difficulties for other manufacturers and businesses. The US Department of Justice supervises the implementation of the penalty for Microsoft Company within 5 years and can extend it by 2 years if it is not seriously implemented (Demougin, D., & Fluet, C., 2006). In this case, the European Commission also ruled that Microsoft's behavior prevented PCs worldwide from being allowed to install web browsers competing with Microsoft's IE; therefore, Microsoft's behavior was considered anti-competitive behavior in the form of monopolizing its own web browser called Internet Explorer on Microsoft's Windows operating system (Romano, LV, 2005).

In the above lawsuit, handling the legal situation requires evidence to prove whether or not there is anti-competitive behavior leading to monopoly, which are documents.

related to the competition litigation agencies, lawyers, plaintiffs, defendants and people with related rights and obligations collect and bring to court. However, this is a business and competition activity on a digital platform; thus, its evidence must mostly be in the form of electronic data collected and processed in accordance with the competition litigation procedures and this is the electronic evidence serving the investigation, trial and judgment of the litigation agencies, basically there must be documents in the form of electronic data.

To prove whether or not there are monopolistic acts of Microsoft, competition authorities must at least collect the following types of electronic evidence: Product description submitted to the authorities when providing the product to the market, all source code and technical design, feature description, technical standards. Results of analysis/investigation of product characteristics in an environment supervised by competent state agencies. The analysis here aims to collect evidence to prove whether with this characteristic the product restricts competition or not, leading to monopoly or not. Analysis of electronic evidence proves whether the lack of influence of software released by a third party has a negative impact on the system or not. The sales policy of the manufacturer and supplier of the product announced, usually announced in the form of electronic data, is also electronic evidence to prove whether there is a restriction of competition leading to monopoly or not, showing whether the end user is constrained by any technology or other utilities. The terms or regulations in the software release contract are often in the form of electronic data, which is also electronic evidence to prove. Market research data is a measure of the total products on the market, which can be collected through software tools or social networks, it is a measure to evaluate the market dominance of a technology product or service.

4.3.3.2 Google's Doubleclick Merger

According to the document: Statement of Federal Trade Commission (FTC) Concerning Google/ DoubleClick FTC File No. 071-0170 (Federal Trade Commission, 2007). To understand this case, it is necessary to learn about online advertising at the time of the merger of these two companies; the components and operations in online advertising are understood as follows: Advertisers can be a business that wants to promote its own brand or product, or an advertising business company hired by the business to do this job. Thus, they will find a place to buy advertising space, which can be the owner of the search engine (for example, Google through AdWord to sell advertising space) and the content producer or publisher in the advertising business (for example, the owner of the website sells advertising space on his website),

and an advertising intermediary to place the ads where they want them (the best companies to do this are search engines, of which Google is a prime example); advertisers can buy ad space directly from publishers or through an advertising intermediary, with Google being the advertising intermediary at this point. To ensure that advertisers’ products are distributed and managed properly by the ad publisher and the advertising company, a third-party advertising distribution management company is needed, and Doubleclick is such a company. In this case, the FTC analyzed the electronic evidence they collected and concluded that the merger would not result in a reduction of competition, so they agreed to let Google acquire Doubleclick.

Electronic evidence in this case is required to be: (1) The product description of the manufacturer or trader must be registered with the competent state agency when putting their product into operation on the market. This is a detailed announcement of the service features, in the form of electronic data when putting the service into operation. If the announcement is not detailed, the trader must be legally responsible for unclear services when users are damaged or confused. (2) The conclusion of the competent public agencies that have verified and analyzed the product features to have evidence to authenticate the features of the product or service. (3) The relevant patent samples contained in the product have been registered with the competent agency. A product can contain a series of patents (patents in this case always have source code), these patents create functional tools to register behaviors, services, tools, actions... from which to form a product for users. (4) Terms in contracts with customers, distributors including all types of electronic contracts and traditional contracts: What can be done, what cannot be done and here we can see the terms serving the purpose of restricting competition leading to monopoly. (5) Audit results, including audit results of Google and DoubleClick's competitors to determine the company's market share, from which to calculate the market share control ratio. Audit results can be paper information documents, valid documents and can also be recognized electronic data. (6) Data collected through market research to determine the total product on the market. Nowadays, market research is conducted using various tools, of which digital tools have become popular due to the strengths of these tools, so market research documents in this case are mostly electronic data. (7) The results of the hearing in this field to determine whether this is a background technology or not, if it is a technology

The platform must be open so that the community can participate in development, and at the same time it must support the development of other technologies.

4.3.3.3 Comparison with Vietnamese law

In the above two lawsuits, if they happened in Vietnam, it would be very difficult to resolve, but if Vietnamese law has provisions requiring companies doing business in the field of information technology to fully register their products with competent state agencies, the state agencies are responsible for analyzing its impact on the market and making specific recommendations, how such business affects domestic and foreign market competition, so that they can adjust to avoid anti-competitive behavior. The company must also register specific and clear patents, so that the State can protect their rights, and at the same time serve as a basis for providing electronic evidence to resolve future legal situations. Their sales and service policies disseminated on cyberspace must also be strictly examined to protect consumers, and at the same time serve as a basis for detecting whether or not there is a violation of anti-competitive behavior. State agencies must specify what products are platform products, so that these products are open products for many people to participate in development, avoiding abuse leading to monopoly. For example, computer operating systems are platform products, they must be open products so that companies and individuals can participate in developing applications on this operating system platform. Avoid monopoly like the case of Microsoft's IE software. Vietnam's Law on Information Technology and Competition Law still have quite general regulations for these cases. The Law on Competition Procedure is still very sketchy, a miniature version of civil procedure, not governing the requirements of electronic evidence in response to the development requirements of practice.

In summary, in this section we see that to solve the problem of competition restriction violations, Vietnamese law, specifically the Competition Proceedings Law, needs to expand the authority of the Competition Investigation Agency so that they are qualified to participate in the investigation and collect electronic evidence; at the same time, it also allows Lawyers, representatives of the rights and legitimate interests of the parties to participate in the investigation and collect electronic evidence using digital forensic measures. However, when allowing, there must be a monitoring agency to check with public, transparent, and strict procedures to avoid abuse and infringement on other legitimate interests.

4.3.4 Use of electronic evidence in criminal cases

In criminal cases, the use of electronic evidence as well as other types of evidence plays an extremely important role, it determines the success or failure of a case, seriously affects people's lives, even directly affects lives. Vietnamese law in the criminal field, although

have not been given specific instructions on the process, order, and procedures for collecting, accepting, and using electronic evidence, but by strictly adhering to the principles of using electronic evidence, they have applied existing laws, effectively resolving the collection, assessment, acceptance, and use of electronic evidence, leading to the successful trial of important cases. The case study below reflects that: The case of Fraudulent appropriation of property by DNH and accomplices, appropriating toll collection money on the Ho Chi Minh City - Trung Luong Expressway (Ho Chi Minh City People's Court, 2020). Toll collection on the Ho Chi Minh City - Trung Luong Expressway is managed through the ITOLL Plus toll collection software (abbreviated as ITD software), installed at 04 stations of the toll collection system on the Ho Chi Minh City - Trung Luong Expressway including: Cho Dem Station (Central Station in Binh Chanh); Than Cuu Nghia Station (in Tien Giang); Tan An Station (Long An), Ben Luc Station (Long An). When receiving the toll collection, YK Company was obliged to keep the handed over system operating without any changes. However, with the purpose of appropriating assets from the beginning, DNH directed employees of YK Company to perform many fraudulent acts and tricks to reduce and conceal revenue and appropriate toll collection money. In particular, DNH and his accomplices hired NXH, Director of XP Company, to write software to interfere with the ITD toll collection software (called XP software). XP software has performed the following functions:

- Get ticket price data from the database storing actual vehicle numbers.

- Select the time to get the quantity and denomination of tickets to convert.

- Select the percentage of tickets to change the value (choose the percentage depending on the user's preference).

- Change the high denomination ticket to a low denomination within a predetermined percentage selected by the defendant.

- Take the license plate number and number of cars from the previous day (for which fees were collected) and overlap them with the license plate number and number of the day that needs to be changed.

This software is installed on a computer connected to the computer system at 4 toll stations. The actual data of the toll stations is synchronized by the computer system and stored on the central server located at Cho Dem station. When the XP software was running, DNH directed his accomplices to delete real toll data on the servers from 2016 onwards, to conceal the fraudulent act of cutting revenue and appropriating toll collection money. Before deleting, the data was copied and stored on 04 hard drives. Through the process of collecting electronic evidence, it was determined that from January 2014 to the end of December 2018, DNH and his accomplices of YK Company appropriated toll collection money of: 725,325,876,000 VND .

4.3.4.1 Collecting electronic evidence fulfills the obligation to request and the obligation to prove the form of the prosecution agency, and complies with the principle of objectivity in the use of electronic evidence.

In the context of Vietnamese law recognizing electronic data as a source of evidence, that is, recognizing the legal status of electronic evidence, but the procedures and order of collecting, evaluating, accepting, and using electronic evidence have not been specifically guided. To ensure honest resolution and avoid wrongful convictions, the principle of objectivity in collecting this type of evidence for criminal cases must be given top priority. To do that, in the case of DNH and his accomplices committing fraud and appropriating property, the Investigation Agency and the Procuracy (referred to as the subjects performing the obligation to prove) applied existing laws, applied measures and methods to collect electronic evidence in an objective, comprehensive, effective, and honest manner, meeting the requirements of proof, technological requirements, and legal requirements.

Electronic evidence collection measures are used synchronously and effectively. Applying Article 201 of the Criminal Procedure Code, conducting physical crime scene examination combined with digital crime scene examination, with reasonable procedures. Applying Article 195 of the Criminal Procedure Code, implementing measures to search the workplace, with the presence of representatives of YK Company and XP Company, especially inviting information technology experts to participate, seizing computers and electronic devices capable of containing electronic evidence documents in the form of electronic data. Digital forensic investigation measures have not been recognized by law. However, applying Clause 4 of Article 195 of the Criminal Procedure Code, the subject performing the obligation to prove the warrant to search the means of computers and electronic devices of the case, seized through digital crime scene examination measures, searching the workplace, and simultaneously conducting computer forensic investigation. This measure is carried out in a high-quality lab, with the participation of the subject performing the burden of proof, representatives of the rights and obligations of YK Company, XP, CL Company, the Ministry of Transport, the defendant, and IT experts.

Applied method: Content method of collecting electronic evidence, meeting the requirements of proof, thereby collecting electronic evidence proving the fraudulent behavior of YK Company's assets. Meeting technological requirements, using specialized software tools, copying, restoring, retrieving data against reverse writing, against overwriting. Copying electronic data with accompanying metadata, meeting the original requirements of electronic data, setting information, context, structure, and technology of forming electronic data are kept intact. Recovering electronic data with specialized tools in accordance with international practice. Applying Clause 5, Article 107 of the Criminal Procedure Code to preserve electronic devices and data

electronic devices seized as evidence. However, that is not enough, it is necessary to simultaneously establish an electronic data storage mechanism, so as to meet the requirements of preserving the integrity of data in accordance with the technological process, such as using Faraday bags to contain seized electronic devices, avoiding data changes, using Timestamp technology to accurately determine the time of technical incidents if any occur with the data, thereby combining with the chain of custody performed in the formal method to assess the integrity of the data collected as evidence. Regarding the formal method, the record fully describes the information about the implementer, tools, technology, analysis model, information reflecting the process of use, implementation, and formation of documents on the chain of custody of all stages of the electronic evidence collection measure, helping third parties to be able to check back for matching results.

By applying existing Vietnamese laws and supplementing measures and methods for collecting electronic evidence in the above case, it has contributed to clarifying the order and procedures in the process of collecting electronic evidence. During the implementation process, the litigants strictly adhered to the principles of collecting electronic evidence, contributing to the good and thorough implementation of the principle of objectivity in the use of electronic evidence.

4.3.4.2 Evaluate and accept electronic evidence based on the principles of fairness, transparency, and rule of law in the use of electronic evidence

In the process of collecting electronic evidence, the subject performing the obligation to prove always evaluates and accepts it in parallel with the process of collecting electronic evidence. However, at the trial, the acceptance of electronic evidence must go through the process of questioning, litigation and is under the jurisdiction of the Trial Panel, which demonstrates the principle of fairness, publicity and transparency in the use of evidence in criminal cases. Because the principle of objectivity in the use of electronic evidence is ensured, each item of electronic evidence in this case, announced by the subject performing the obligation to prove before the Court, and at the same time used as a tool to build hypotheses, proving the criminal acts of DNH and his accomplices, is considered and highly appreciated by the Trial Panel as having appropriate grounds for acceptance.

The Trial Panel recognized the legality of the collected electronic evidence, the reason being that the collection process did not violate Vietnamese law. In the electronic means, specifically computers and portable hard drives, exploitation was permitted by the competent prosecution authority. The permission to exploit was justified, because there were documents proving the defendant's criminal acts stored in the seized means and devices. The search and exploitation of the computer did not violate the privacy of individuals or the business secrets of the company, because the privacy of the defendants and the business secrets of the YK and XP Companies in this case were illegal acts that needed to be clarified.

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