In the daily life and communication of people, mobile phone SMS, WeChat, e-mail and so on have become indispensable tools. But if the dispute is involved, can these contents be the evidence of the lawsuit?
February 4, 2015, Supreme People's Court issued About the Application of Civil Procedure Law of the People's Republic of China, the interpretation of article 116, making clear that the information that is formed or stored in electronic media, such as e-mail, chat records, cell phone SMS and so on, can be used as evidence.
The new civil procedure law interpretation recognized electronic evidence, and in the case of the actual trial also often received by the parties as evidence to use the mobile phone text messages, WeChat screenshots. Among them, divorce cases and private lending cases are the most.
However, this kind of electronic data is easily tampered with. It is necessary to comply with certain forms of form to remove the obstacles of authenticity and relevance in the use of the evidence.
Taking SMS as an example, it should be presented as evidence, and it will be written out in the relevant information such as the contents of the short message, the sending people, the sending time, the saving location and so on, as a part of the transcript of the court trial. The issuing party may also voluntarily apply for notarization of the message and present the notarial document as evidence. After the court review to verify compliance with the evidence of "three sexes" mobile phone message, can be used as a basis for the verdict.
1. How can the SMS be shown in court?
Analyze: SMS should be presented in the court, and it will be written out in the relevant information such as the contents of the short message, the sending people, the sending time, the saving location and so on, as a part of the transcript of the court trial. The issuing party may also voluntarily apply for notarization of the message and present the notarial document as evidence.
Prompt: Recommended for security evidence notarized, notary staff will take a photo or video capture of the contents of the message, the device that stores the message. It is convenient for the court to adopt the facts objectively.
2. What should be paid attention to to review SMS?
Analyze: After the court review to verify compliance with the evidence of "three sexes" mobile phone message, can be used as a basis for the verdict. But because of the existence of mobile SMS features deleted, in general, it should not be used alone as the basis for identifying the facts of the case, and should be strengthened with other evidence.
⑴Review the sender, the recipient (name and phone number), and the time of sending and receiving. The relationship between the sender, the recipient and the client of the case.
⑵ Check whether the location of the text message is changed or whether the message is still in the box.
⑶ Check whether the content of SMS is complete, whether it is in contradiction with other evidence, and whether it is associated with the facts to be treated.
⑷ Apply for accreditation or investigate with telecom operators when necessary. But because the character of SMS, WeChat is easy to change. There are also problems that operators do not provide personal privacy information, and so on. In general, it should not be used solely as the basis for ascertaining the facts of a case, and should be reinforced in the light of other evidence.
Because of the authenticity of the doubt, the judge rarely directly based on such text messages, WeChat screenshot to identify the facts of the case. However, if both parties have no objection to the authenticity of this text message and the WeChat chat content. Or the screenshot is notarized, and the electronic data can basically meet the authenticity of the evidence. However, in addition to the facts of authenticity, the proof is still necessary to prove the relevance of the evidence to the case. That is, to prove the true identity of the other party in the text messages, WeChat, e-mail. For example, article 4, paragraph 4 of Guiding Opinions on Handling Notarization of Internet Electronic Evidence issued in 2012, where a party applies to preserve online chatting records and emails, the notary public shall inform him or her that, if the true identity of the other party can not be proved, the preserved electronic information may not have the evident effect. To solve this evidence-related disorder. When the parties sign a contract, it is best to make an agreement to make sure that a micro-blog or WeChat account is all of them, indicating that the statement of the account is the expression of its true meaning.
Ⅱ. Recording evidence
⑴Judicial interpretation of recording evidence
The Former Supreme Court of the People's Republic of China About the Approval of the Use of Information Obtained by Private Recording Without the Consent of the Other Party as provisions: Information obtained without the consent of the other party in private recording can not be used as evidence. And the exclusionary rule of illegal evidence is excluded.
The new rules of evidence in the civil procedure of the Supreme People's court redefine the exact meaning of the illegal evidence. That is, the sixty-eighth provisions of the Provisions of the Evidence on Civil Proceedings: Evidence obtained by infringing the lawful rights and interests of others or violating the law prohibits sexual activity can not be used as a basis for ascertaining the facts of a case. For sound evidence, it is said that if the holder of the recording evidence adopts the regulations that violate the privacy of others or violate the legal prohibition of the law, such as recording the privacy of other people or eavesdropping in their work or dwelling access to the recorded information, will still be excluded.
However, it falls under article 70 of the evidence rules for civil proceedings. "Proof of evidence and evidence obtained by lawful means, undoubtedly audio-visual materials or audio-visual data with the correct copy"is a proof of force. To make the recording evidence as the basis for judgments, two conditions must be met:
First, the acquisition of recording evidence must be in accordance with the law. The dialogue between the two parties of the recording was not restricted at that time. It was the meaning of self-conscious freedom. It was good faith and necessary. To protect the legitimate rights and interests of the parties and to find out the truth of the case.
Second, the recording technical conditions of the recording evidence are good. The speaker's identity is clear, the content is clear, and it is objective and consistent. Not spliced or forged, the contents have not been changed, no doubt, there is evidence of other evidence.
How is the telephone recording effective?
In practice, the telephone recording should be in accordance with the following methods.
1. The object of the recording must be the debtor or the party to bear the obligation.
Only the debtor (the debtor)'s speech can be binding on him. In practice, someone does not admit that the person who has been recorded is himself, and you should apply for judicial authentication. However, you must first pay the appraisal fee(The cost is very expensive, generally according to minute charges). The final identification of the cost is decided by the court (generally borne by the losing party). Of course, it is better to dial the number that the caller is registered with a company such as telecommunications or mobile.
2. Telephone recordings must fully reflect the contents of the claims and liabilities or other civil obligations
For example: In the case of arrears, the recording should allow the debtor to fully state the exact amount and reason for the default. The amount is better specific to one unit.
3. The telephone recording should be true and complete
The recording evidence should not be cut, edited, or forged. The connection is close, the content is not tampered, and it is objective and consistent. In some cases, the sound recording will deliberately guide the other party to make some answers, then perform a technical editing to obtain a piece of evidence that is in his own interest. In this case, even if it is true, it is not valid.
4. The content of the telephone recording must reflect the true meaning of the recorded person
That is, the recordings must not be recorded in the case of being forced. Any evidence obtained through unlawful restrictions on personal liberty, abduction, threats or the like is null and void. Therefore, when recording should pay attention to words and deeds, conversation attitude, tone must be kind.
5. The way the telephone recordings are made should be legal
Provisions of The Supreme People's Court on Certain Provisions of Civil Procedure: Evidence obtained by means of infringing on the lawful rights and interests of others or in violation of the provisions of legal prohibition can not be used as the basis for identifying the facts of the case. For example, you can’t ask the court to decide to marry by a recording by consent to marriage(Because the marriage law stipulates that marriage is free). The recordings of eavesdropping in the house of others will generally be found to be ineffective in violation of the citizen's right to residence.
6. The telephone recording should leave the original carrier
After a recording pen or a cell phone, after copying to the computer, the recording pen or the recording in the cell phone should not be deleted. According to the Provisions of the Supreme People's Court on Evidence in Civil Proceedings, If there is an objection to the other, the court or the accreditation agency will ask you to show the original recording material. Otherwise, recording power will have problems. In addition, the finished recording should be finished into written materials, and restrained into CD(Court needs).
⑵Forensic techniques of recording evidence
Provisions of The Supreme People's Court on Several Provisions on Evidence in Civil Proceeding Effective from April 1, 2002. Recordings obtained by legal means can be submitted to court as evidence. However, in reality, the parties often lack the skills of forensics, resulting in insufficient proof of recording. Here, discuss the technique of obtaining evidence for recording evidence.
1. Selection of time and place of recording
From a favorable litigation point of view, the recording should be carried out as soon as possible.The sooner they are carried out, the less preparedness for the object of evidence. Especially in the first negotiation, it usually does not distort the fact, and the conversation is of the greatest value at this time. After several negotiations, the other person tends to describe it from the point of view of its own advantage, or take a defensive attitude.
The choice of place is also very important. We should try to find more quiet and undisturbed places and get better results.
2. Recording equipment
Try to choose devices with small size, easy to hide, long recording time and high sound quality. The interviewing machine, the recording pen or the MP3 with the recording function is all right, and it's best to make a copy of it. In addition, the telephone recording is generally not as good as the field recording. When there is a disagreement in the conversation, the forensics may hang up the phone if they don't want to continue. In the face to face conversation, even if some controversy can continue.
3. Preparatory work before obtaining evidence
Get ready for forensics and the fact you want each other to admit. Be prepared for the conversation, including considering the questions and possible attitudes of the other person in advance, how to induce each other' s representation and so on. As for whether to have an appointment in advance, it should be based on the circumstances, go straight to the door easy access to "attack its unprepared" effect. But there may also be an accident, such as being rejected by the other party or interrupting the conversation for other reasons.
4. Manners of talk
Since it is a private record, the most important thing, of course, is not to let the forensics detect that you are recording. So demeanor, tone should be natural. If the people you know, you should pay more attention.
⑴Give time, place to the conversation. To clarify the identity of the parties and the relationship with the facts of the discussion, try to use the full name of the conversation during the conversation to enhance the relevance and credibility of the recording.
⑵Pay attention to the mutual proof of the content of other evidence. Because there are other evidence to support the condition of the recording of the evidence.
⑶The conversation does not involve personal privacy or business secrets that are not related to the case. Don't take a muzzle, or you may be identified as illegal and not to be trusted.
⑷Focus on the facts of the narrative, recognition or denial. Do not dwell on the legal liability debate.
⑸Pay attention to the conversation time. And ask the fact that you want the other person to admit it.
5. The notarization and recording process of the notary office may be requested when it is necessary.
In the place where evidence is notarized, the notarial recording process of the notary office can be requested to ensure the legitimacy of the recording evidence when it is necessary.
In front of a notary call and record, the notary office will issue a certificate of evidence preservation. Provisions of The Supreme People's Court on Certain Provisions of Civil Procedure, notarized evidence proving stronger than ordinary evidence. A notarized recording can be found by the court without a splicing, and the cost of notarization is not high.
1. How can an email be presented in court?
Analysis: The party should provide the source of the mail, including the sender, the consignee and the mail provider, the relationship between the above persons and the parties involved in the case, the generation of the mail, the time of receiving and the content of the mail. If there is no objection from both parties during the court trial, the e-mail may be presented directly; otherwise, the e-mail should be presented in court on a computer and downloaded and printed as a piece of paper.
If an email has been notarized, it may not be shown in the court, but the document is shown directly as evidence.
Prompt: It is suggested that the evidence be preserved before the trial. It is convenient for the court to refer to the contents of the notarization book by saving the demonstration of the mail in the court.
2. What are the factors that can be used to judge the authenticity of E - mail?
Analysis: Although e-mail is transmitted and received as electronic messages, not as good as a traditional card fidelity, it is not easy to identify after tampering. E-mail also has its own advantages, that is, the sender and the addressee are the only ones. Each mailbox corresponds to a unique user, and its Internet accounts, passwords, and username are unique in relative time.
The factors that can be used to judge the authenticity of the mail are:
⑴Compare e-mail with other evidences, and ask the relevant personnel to make a confrontation if necessary.
⑵Review the e-mail access methods. Is it purchased from a web service or a free registration? In general, the former is more reliable.
⑶Review mail delivery, time of receipt. E-mail sent abroad by the Internet service providers or by international mail forwarder delivery, must go through a certain period of time, or not in line with the objective situation.
⑷If necessary, ask the web service provider to help, from the e-mail transmission, storage links directly to preserve evidence. Or to identify, from the e-mail generation, storage, transmission of the reliability of the environment, whether to tamper with the relevant parties to put forward expert advice.
Ⅳ. Web evidence
1. How to organize the proof for the web page evidence?
Analysis: When presenting a web page as evidence, the proof party shall provide the web site, the time, and present the web page in court to indicate the content of the web page associated with the case. At the same time, the paper provides Web pages, for file search. With the consent of both parties, we can also show the page paper only and no longer demonstrate the web page. The above process should be fully embodied in the court proceedings. If the equivalent of a web page is notarized, the web page can not be shown in the court. The notarial documents directly presented as evidence.
2. How to examine the authenticity of the web evidence?
Analysis: Both parties dispute on the authenticity of Web evidence. And the web site is the main evidence to find out the facts of the case. Upon application by the parties concerned, relevant websites may be required to provide assistance to directly preserve the evidence from the transmission and storage of the computer system. Or ask the relevant experts to make an appraisal. Expert advice is given from the reliability of the generation, storage, delivery and output of web proofs. Due to the rapid updating and timeliness of Web information, attention should be paid to the preservation of Web evidence in the lawsuit. Due to the rapid updating and timeliness of Web information, attention should be paid to the preservation of Web evidence in the lawsuit. It can be notarized, camera, download and other forms of fixed Web page. In general, the evidence of a notarized web page has a strong proof.
Prompt: Notaries suggest that the parties will enter the required process to capture the Web page. So that the court will be able to review the content of the evidence in a comprehensive way.
To sum up, the daily use of SMS, WeChat, e-mail and other electronic data can be used as evidence. But evidences of three shall comply with the requirements. The key point is to determine the authenticity of the electronic data itself and to verify the true identity of the data receiving subject to meet the case relevance requirements.