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16УДК 343.1
Фам Ньы Хан
Волгоградская академия МВД Российской Федерации
Факультет Адъюнктуры Россия, Волгоград nik.fam.89@mail .ru Фам За Хюи
Волгоградская академия МВД Российской Федерации Факультет подготовки иностранных специалистов
Россия, Волгоград [email protected] Pham Nhu Han
Volgograd Academy of the Ministry of Internal Affairs of
Russia
Faculty of Postgraduate Studies Russia, Volgograd Pham Gia Huy
Volgograd Academy of the Ministry of Internal Affairs of Russia
Faculty of training foreign specialists Russia, Volgograd
КАКИЕ ТИПЫ ЭЛЕКТРОННЫХ ДАННЫХ СЧИТАЮТСЯ ДОКАЗАТЕЛЬСТВАМИ В УГОЛОВНОМ ПРОЦЕССЕ ВЬЕТНАМА? Аннотация: в последние годы преступники совершают преступления с использованием все более технических методов. Большинство из них знакомы с электронными данными и знают законодательство, поэтому они придумали продвинутые способы скрыть незаконную информацию, такие как удаление данных или уничтожение созданных веб-сайтов. Сбор доказательств и решение дел — сложная задача. Поэтому для выяснения этих дел прокуратуре
необходимо оперативно и в полном объеме собрать важные данные и при необходимости принять меры по их восстановлению. Следующие статьи описывают электронные данные, сбор и использование доказательств в качестве электронных данных в уголовном процессе.
Ключевые слова: преступник, электронный данный, доказательство, уголовный процесс, информация, технический метод.
WHAT TYPES OF ELECTRONIC DATA IS CONSIDERED EVIDENCE IN VIETNAMESE CRIMINAL PROCEEDINGS?
Annotation: criminals have been increasingly using technological ways to perpetrate crimes in recent years. Because the majority of these individuals are familiar with electronic data and are aware of the law, they have developed sophisticated methods for concealing illicit information, such as erasing data and destroying the constructed Web site... Evidence gathering and case resolution are both demanding tasks. As a result, in order to solve these cases, prosecuting authorities must rapidly and completely gather important data in a timely way, as well as take steps to restore them if necessary as proof that the individuals had committed a crime. Types of electronic data, collecting and use of evidence as electronic data in criminal trials are examined in the following article.
Keywords: criminal, electronic data, evidence, criminal process, information, technical method.
In a criminal case, evidence is what is real, collected according to the order and procedures prescribed by the Criminal Procedure Code (further - CPrC), and used by the procedure-conducting agency to determine whether or not there was a criminal act, who committed the offence, and other circumstances necessary for the proper settlement of the case. Although computerized data recognition is useful as evidence in court, it is not totally accurate. To determine whether electronic data is admissible as evidence, the prosecuting agency must consider a variety of factors, including:
how electronic data is generated, stored, or transmitted; how to ensure and maintain the integrity of electronic data; the method for determining the originator, and other relevant factors (Clause 3, Article 99 of the CPrC 2015) [1]. Furthermore, the value of electronic data, as well as other forms of evidence sources, is evaluated and decided on a case-by-case basis by the agency conducting the proceedings.
What kind of electronic data is considered as evidence?
One of the essential new points of the 2015 Criminal Procedure Code is to stipulate a new source of evidence in the chapter on evidence that is "electronic data". This is a new issue and, for the first time, it is officially recognized in the legal system as a source of evidence used in solving criminal cases.
Evidence is a means to prove criminals and offenders and determine other circumstances necessary for the correct settlement of criminal cases. It appears to go together with the fight against crime. Evidence helps you figure out what the real truth of the matter is, and it shows how you came to that conclusion.
In criminal proceedings, the investigating, prosecuting, and adjudicating agencies can only determine the circumstances of the case by evidence from which there is a basis for determining whether a crime has occurred. Whether or not a crime has occurred, the decision to take the necessary legal measures So evidence is used to support certain facts and phenomena while excluding or negating things that were irrelevant or didn't happen in real life.
The fact that the Criminal Procedure Code 2015 stipulates in Article 87 that one of the sources of evidence is electronic data, shows that in the current period, the evidence source is electronic data, which plays an increasingly important role in the process of proving the case. Criminal To define the concept of evidence as electronic data, we need to understand what evidence is. According to Article 86 of the Criminal Procedure Code 2015, evidence is objective, collected according to the order and procedures prescribed by this code and used as a basis for determining whether or not a violation has been committed. The crime, the person who committed the offense, and other significant circumstances in the settlement of the case
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Thus, regardless of the source, evidence has basic signs and attributes; this does not exclude evidence that is electronic data. However, determining this concept is somewhat more complex and complicated because, according to the traditional view, the evidence must be material information that people can control and hold. Grab and dominate. However, this is not the case with electronic data evidence.
Even the mechanism by which electronic data is formed is not the same as the traditional view. According to the theory of dialectical materialism, every crime that occurs in reality can be detected and proven by humans. Also, according to dialectical materialism, all things have the property of reflection, so human activities, including criminal acts, leave traces in the objective world. The traces of criminal acts can be expressed in physical form, such as criminal traces existing on tools, means of crime, fingerprints of offenders left on the scene or reflected, or recorded in the human memory, be it the victim or another person. This is not the case with electronic data evidence because the mechanism of formation (reflection), existence, and carrying of electronic data information is different from that of traditional evidence. Understanding electronic evidence is also different.
Electronic evidence is evidence that is relevant to a criminal case and is recorded in the form of an electronic signal on a computer or in devices with digital memory [2, c.315]. Interpol defines electronic evidence as information or data kept or communicated by a computer, computer network, or digital electronic device. Establishing, seizing, and recovering electronic evidence requires speed but also care, accuracy, and meticulousness.
Electronic data is any symbol, text, number, picture, sound, or similar form generated, stored, transferred, or received by electronic means. Electronic data is acquired from electronic sources such as computers, networks, and transmission lines. Similarly, Article 95 of the 2015 Civil Code specifies material relevant to identifying evidence as an electronic data message [3]. The Criminal Procedure Code defines electronic data transmission as evidence-like content.
Electronic evidence is data saved as an electronic signal on a computer or other device having digital memory. This information must be objective, relevant, and legitimate. A judge or jury can't use "electronic data" to prove a point if it's not objective, relevant, and done right.
Because "electronic data" is kept on computers and digital devices, it must also meet three additional criteria to be admissible as legal evidence: It must be "verifiable" and "as is" with no outside meddling in the data to edit or remove.
In practice, In today's world of information and communication technologies, a computer and a computer network are inseparable. Thus, high-tech criminals' actions are becoming more common and complex. In our society, more and more evidence comes from technology as we try to figure out how the criminal process works.
Different kinds of electronic evidence
An electronic document or piece of information that contains a variety of data. An email, for example, contains the data that conveys the content, the transmission location and destination, the time, and the date... As a result, each sort of electronic evidence will correlate to a particular set of data.
Using the structure of electronic evidence as a guide
By using electronic methods, an electronic signature may be formed in the form of words, characters, numbers, symbols, sounds, or other forms, and it can be coupled to or paired with a logic that can authenticate data communications. person who signs the data message and acknowledges that person's permission to the data message's content The following are the most common types of electronic signatures:
A digital signature is an electronic signature that is formed by changing a data message using an asymmetric cryptographic system, with the user receiving both the original data message and the user's public key. It is possible to precisely detect a signature. A digital signature, according to this definition, is any electronic document or data message whose digital signature is confirmed by the public key stated in the original data message [4].
Electronic cryptography is the use of codes to ensure that only those with the intended purpose of data may read and process it, hence ensuring data security. Codes are used to ensure that only those who need the information may read and process it. A secret code that encrypts personal data sent over public networks into a format that can only be decrypted by an appropriate electronic lock.
The Internet and its most popular application, the World Wide Web, are completely public systems. Unless you take precautions, any information you send over the Net is potentially visible to all. Sending an e-mail, for example, is like posting a letter without an envelope: anybody can intercept the message and read its contents as it is routed towards its recipient. Similarly, when your web browser logs into a web server, anyone can listen in to the information that is exchanged between your computer and the remote server.
What, then, is the solution to security and privacy on the Internet? The answer is public key cryptography.
It is public key cryptography that makes e-commerce on the web possible. It is used, for example, in the Secure Socket Layer (SSL) protocol which enables secure access to we pages. It is public key cryptography, as used in software like PGP (Pretty Good Privacy), that can safeguard the privacy of your e-mails and data. And it is public key cryptography which permits the creation of digital signatures, so that the authenticity and integrity of digital messages can be verified.
Most applications of cryptography on the Internet, such as SSL, work as an additional layer over existing Internet protocols. A more recent development, IPSec (Internet Protocol Security), is a secure replacement for the Internet Protocol (IP) using public key cryptography (IP is one of the fundamental Internet protocols and is responsible for the packaging and routing of information transmitted via the Internet). An increasingly popular application for IPSec today is Virtual Private Networking, the creation of a secure, private network on top of an untrusted, public network like the Internet. All data sent over a VPN is encrypted by IPSec, so the application
software used to communicate over a VPN doesn't have to use or support cryptography for the data to remain secure [5].
Any distinguishing sign, characteristic, or sound in electronic form designed to safeguard such information is referred to as an electronic sign (encryption is a means of securing data you don't want to view). It is properly associated or linked to an electronic communication or electronic document, or to any procedure utilized or applied by a person and used by that individual, and it reflects the identity of that individual. conducted or implemented in order to authenticate, sign, or approve electronic data.
Electronic data message (Electronic message) is electronic data produced, delivered, received, and kept by electronic means from the petition, papers, evidence, and procedural documents that have been submitted. Information that is generated, delivered, received, or stored by electronic means is referred to as an Electronic Data Message.
Electronic data message means information generated, sent, received, or stored by means of electronic, optical, or any other similar technologies, including electronic data interchange, fax, e-mail, telegraph, telex, and telecopy.(d) Computer means a device capable of receiving, transmitting, storing, processing, or retrieving information and records, using arithmetic and logical means by manipulation of electronic, magnetic, optical, or any other similar technologies;(e) Computer network means the network system of the interconnection of computers through use of satellite or by any other technologies;(f) Electronic signature means any symbol or mark arranged personally or on his behalf by electronic technology or any other similar technologies to verify the authenticity of the source of the electronic record and the absence of amendment or substitution;(g) Certification authority means a person or an organization that has been granted a licence by the Control Board under this Law for services in respect of the electronic signature;(h) Certificate means the certificate issued to a subscriber by the certification authority as an electronic data
message or other record identifying the relation between the signer of an electronic signature and the electronic data message [6].
Electronic archives (electronic documents) are papers developed in the form of data messages generated by agencies, companies, or people, or digitized from physical documents. Bring more information Electronic documents are information, facts, figures, symbols, or other textual expressions that have been described or presented in a digital manner.
Based on the electronic evidence source.
Materials and data produced by human conduct and saved in electronic memory, such as documents, tables, and emails, are examples of human-generated electronic evidence.
Payment schedules, online registration information forms, transaction histories, and other documents and data created by a computer program according to a specified algorithm are examples of automated computer-generated electronic evidence.
Determined by storage capacity
Telephone calls, text messages or chats, audio and photos exchanged online without being saved are examples of electronic communication data.
In information and communication systems, electronic data refers to data that is generated, communicated, received, stored, or processed on an electronic data message or electronic document on a computer system or similar device and is saved.
Collection and use of evidence as electronic data in criminal proceedings
Evidence collection in a criminal case is the process of detecting, recording, seizing, and preserving evidence conducted by investigators and statutory persons by methods, measures, and means suitable to the law. The law is not against the law. Thus, evidence collection activities include detection, recording, seizure, and preservation of evidence [7].
Article 107 of the 2015 Criminal Procedure Code stipulates the collection of electronic means and electronic data as follows: they must be seized in a timely and
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complete manner, accurately describe the current situation, and sealed immediately after being seized according to regulations under the law. In the event that the electronic data storage medium cannot be seized, the agency competent to conduct legal proceedings shall back up such electronic data to the electronic medium and preserve it as evidence, while also requesting that the agency conduct the proceedings. Related agencies, organizations, and individuals store and preserve the integrity of electronic data that procedure-conducting agencies have backed up. These agencies, organizations, and individuals must be held responsible before the law.
When collecting, intercepting, or backing up electronic data from electronic media, computer networks, telecommunications networks, or transmission lines, the agency competent to conduct proceedings must make a record and put it in the file.
Upon making the decision to seek professional assistance from the responsible agency, the person or organization must restore, search, and evaluate electronic data. The outcomes of recovery, search, and evaluation must be translated into a form that can be read, heard, or seen.
As opposed to other types of evidence, electronic data has unique characteristics in terms of content and recording method, so in order for this activity to run smoothly and achieve the desired result, it must strictly adhere to the principles of evidence collection, preservation, analysis, search, and examination. Not changing information saved on computers or digital devices; with access to original data, qualified specialists must gather and retrieve electronic evidence [8].
Furthermore, data recording must be done correctly, using globally recognized and verified equipment and software. They must be able to retrieve data and locate proof. The procedure may be repeated to get the same result as in court.
Two prerequisites for gathering electronic media and data must be met:
First, the legislation must be gathered and preserved. Create a search warrant that includes all search and seizure procedures. To assure the legal legitimacy of electronic data and its use as evidence.
Second, authenticity: to guarantee that electronic data is collected and kept on an electronic medium before, during, and after the seizure of physical evidence. The existence of tangible and electronic evidence that is not faked or warped is sufficient proof.
Thus, in order for electronic data to have the same evidential value as "conventional documents", court authoritie's efforts such as collecting, archiving, retrieving, decoding, analyzing, searching, and evaluating data are required. The order and criminal processes for searching, producing records, sealing, seizing, and keeping electronic data must be followed (computer hard drives, smartphones, USB, memory cards, optical discs, cameras, cameras, email...). Open and re-seal material evidence before giving it to data recovery experts so that they can copy data from it, but not before.
People who work for the courts copy, retrieve, decode, analyze, and search for data in material evidence storage devices.
The expertise solicitation findings will serve as a particular foundation for prosecuting the case and prosecuting the accused: If the subject's confiscated bank cards are phony or if the subject's equipment is used to produce phony cards, the authorities will have enough evidence to pursue the crime.
Finally, electronic data is used for reviewing, assessing, and applying evidence. The person supplying electronic evidence must be able to prove: Investigative methods, notably when intercepting, copying, retrieving, decoding, analyzing, and searching without modifying the data.
Specialists who copy, retrieve, search, and convert evidence must adhere to the law's rules and methods, maintain data integrity, and not alter evidence; Using legal-recognized equipment and software.
Using data as evidence to demonstrate impartiality, integrity, and verifiability, the court may ask another assessment agency to re-implement the recovery, analysis, and search of electronic data from evidence seen by lawyers, prosecutors, and judges, repeat the procedure, search by link, and get the same conclusions.
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Список литературы:
1. Bo luat T6 tung hinh su nuoc Cong hoa xa hoi chu nghia Viet Nam, sO: 101/2015/QH13 ngay 27.11.2015 /Уголовно-процессуальный кодекс Социалистической Республики Вьетнам N°101/2015/QH13 27 ноября 2015 г. URL: https://thuvienphapluat.vn/van-ban/Trach-nhiem-hinh-su/Bo-luat-to-tung-hinh-su-2015-296884.aspx. (Дата обращения: 14.04.2022)
2. Нгуен Тхи Нгок Иен, Электронные данные как источник доказательств в уголовном процессе Социалистической Республики Вьетнам // Вестник Экономической Безопасности, 2016. - №3. - c. 315 - 317.
3. Bo luat dan su nuoc Cong hoa xa hoi chu nghia Viet Nam, sO: 91/2015/QH13 ngay 24.11.2015/ Гражданский кодекс Социалистической Республики Вьетнам, №: 91/2015/QH13 24 ноября 2015 г. URL: https://thuvienphapluat.vn/van-ban/Quyen-dan-su/Bo-luat-dan-su-2015-296215.aspx. (Дата обращения: 17.04.2022)
4. Hoffstein, J., Pipher, J., Silverman, J. H., & Silverman, J. H. (2008). An introduction to mathematical cryptography (Vol. 1). New York: springer.
5. Rules on Electronic Evidence. URL: https://www.set. gov.ph/resources/rules-on-electronic-evidence/. (Дата обращения: 15.04.2022)
6. Чан Суан Тхиен Ан, Условия для использования электронных данных в процессе разрешения уголовных дел. [Электронный ресурс]. - Режим доступа: http://tkshcm.edu.vn/dieu-kien-de-du-lieu-dien-tu-co-the-su-dung-lam-chung-cu-trong-qua-trinh-giai-quyet-vu-an-hinh-su/ (Дата обращения: 19.04.2022)
7. Nguyen Van Huyen, Le Lan Chi, Binh luan khoa hoc BLTTHS 2015, Nxb Lao dong, Ha Noi, Nam 2016/ Нгуен Ван Хуен, Ле Лан Чи Научный комментарий к Уголовно-процессуальному кодексу 2015 г., монография, Изд. Труда, Ханой, 2016 г.
8. Tran Van Luyen, Phtog The Vac, Binh luan khoa hoc Bo luat To tung Hinh su 2015, NXB Cong an nhan dan, Ha Noi, 2018/ Чан Ван Луен, Фунг Тхе Вак,
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Научный комментарий к Уголовно-процессуальному кодексу 2015 г., монография, Изд. Народной общественной безопасности, Ханой, 2018 г.
