Supreme Court issued judicial interpretation
stipulates mobile text messages, WeChat chat records, etc.
Common communication information can be used as Electronic data evidence
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Electronic data evidence Submit
Become the basis for judges to judge according to law
Electronic data evidence How exactly do you submit ?
How does the court review ?
Let’s take a look~
electronic data is a new form of evidence added when the " Civil Procedure Law of the People's Republic of China " was revised in 2012. Article 116 of the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China" stipulates that electronic data refers to information formed or stored in an electronic medium through email, electronic data exchange, online chat records, blogs, microblogs, mobile text messages, electronic signatures, domain names, etc. . The recording and video data stored in electronic media shall apply to the provisions of electronic data.
Starting from May 1, 2020, the "Decision of the Supreme People's Court on Amending Several Provisions on Evidence in Civil Litigation" (hereinafter referred to as the "New Evidence Regulations") was officially implemented. Article 14 provides detailed provisions on the scope of electronic data, clarifying that electronic data includes the following information, electronic file : : l2
(I)
Information published by web pages, blogs, Weibo and other network platforms;
(II)
Communication information of network application services such as mobile phone text messages, emails, instant communications, communication groups, etc.;
(III)
User registration information, identity authentication information, electronic transaction records, communication records, login logs and other information;
html l1 (IV)
Documents, pictures, audio, video, digital certificate , computer programs and other electronic files;
(V)
other information that can prove the facts of the case in digital form.
If the parties submit electronic data evidence, it is recommended to fix the content by screenshots, taking pictures, recordings, videos, etc., and submit the paper prints, audio and video storage carriers of the corresponding pictures - such as USB disks and CDs, and then number them to the court.
How should we provide evidence?
provides WeChat, Alipay record as evidence. It is recommended to screenshot and fix the user's personal information interface, including the person and the other party.
Electronic data evidence contains audio . It is recommended to submit text text consistent with the audio content. The text text cannot be brief, but can be highlighted in the key content section with bold .
Electronic data evidence contains video . It is recommended to submit the storage vector after the backup video, which should be able to open normally on a general playback device.
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Electronic data evidence contains pictures and text file . It is recommended to submit a printout of the pictures and text files. The pictures are printed in color and can be restored on site. Color printing is recommended.
5
device that displays electronic data evidence is provided by the parties themselves. Commonly used devices include computers, projectors, audio, etc.
Due to the uncertainty of the litigation cycle, the original carrier may suffer the risk of data loss or deletion. When preparing the litigation materials, it is recommended that the parties apply to the notarization authority for notarization of electronic data evidence .
1 Mobile SMS
Mobile SMS shall be presented in court, and relevant information such as the text message content, sending (receiving) address, sending (receiving) time, saving location, etc. shall be excerpted in writing as part of the trial transcript . The party who presents the evidence can also voluntarily apply for notarization of text messages and present the notarization documents as evidence.
2 Email
One party to provide evidence should provide the source of the email, including the sender, recipient and email provider, the relationship between the above-mentioned persons and the parties to the case, the generation, reception time and email content of the email. When presenting evidence in court, if neither party objections, paper mail can be presented directly; otherwise, it should be demonstrated on a computer in court and downloaded and printed into paper.
If the email has been notarized, the email may be demonstrated in court and directly presented the notarized document as evidence.
3 Web page
When presenting the web page as evidence, the party providing evidence should provide the URL and time, and present the web page in court to indicate the content related to the case in the web page. At the same time, paper parts of the web page are provided for archive inspection. With the consent of both parties, only the web page can be presented and the web page will no longer be demonstrated. The above process should be fully reflected in the trial record. If the relevant web page has been notarized, the web page may be demonstrated in court and the notarization document can be directly presented as evidence.
4 WeChat record
In court, the judge requested the original vector of WeChat , and when the login software shows electronic data evidence , the following steps should be displayed, and the and the pictures, audio and video formed by fixed electronic data evidence are checked in accordance with the following steps:
. Log in to WeChat by the account holder to display the account name used for login.
. Find the other user in the address book and click to view personal information to display the remarks name, nickname, WeChat account, mobile phone number and other identity-oriented content displayed on the personal information interface.
. Click "Send Message" on the personal information interface to enter the communication dialog box, displaying the information content generated during the dialogue one by one. For text files, pictures, audio, video, transfer or red envelope content, you should click to open the display.
4. When displaying transfer information, you should click on the chat details in the communication dialog box to view the transfer record and display the transfer payment information.
5. If the electronic data evidence provided belongs to the dialogue record (including text, audio, video), it should be fully reflected in the dialogue process. Content related to the facts of the case shall not be provided selectively. The court may request that the complete dialogue record be provided within the designated period.
In our country's trial practice, there are many ways to preserve , and you can make transcripts of witness testimony, take photos, record videos, save original objects, etc. When implementing evidence preservation in specific implementation, different preservation methods will be adopted depending on the evidence. The preservation of electronic data evidence includes both traditional methods of preserving evidence and unique methods.
1 Preservation through the People's Court
People's Court Preservation Evidence is divided into two situations: lawsuits, China Preservation and Pre-trial preservation . Based on the particularity of electronic data evidence, in addition to selecting relevant material carriers and making necessary inquiries to relevant users and producers, the most important thing is that should carry out corresponding preservation work under the guidance of experts . Only by combining law and technology can the authenticity and integrity of electronic data evidence be guaranteed, and evidence materials related to the original can be obtained to the maximum extent, avoiding the waste of judicial resources.
2 Notarization guarantee
According to relevant judicial interpretations, notarization evidence has stronger proving power and has higher evidence effectiveness. The content of electronic data evidence preservation and notarization should include original notarization of electronic data and electronic data acquisition behavior notarization of . Specifically, the parties involved shall take the initiative to apply, and the notary agency shall conduct a comprehensive and legality review of the electronic data evidence, and then conduct relevant operations on the electronic data evidence.
3 Network notarization guarantee
Network notarization refers to the fact that a specific network notarization agency accepts and reviews the applications of the parties online and conducts notarization business through the help of the network platform. The contents of the online preservation and notarization of electronic data evidence are divided into general data preservation (i.e. real-time data preservation) and comprehensive preservation (including online auctions, referees, bidding, government procurement, etc.). The application areas involve transactions that one party determines uncertainty to the other party, which can play a supervisory role.
Internet fair protection can be handled based on the application of both parties to and according to the application of both parties to . When notarization, first check whether the generation, storage, transmission, and storage methods of electronic data evidence that need to be preserved are reliable. On the premise of confirming the objective truth of the preservation object, backup, printing, copying, taking photos and taking videos will be used to preserve it.
Generally speaking, the review of evidence should focus on its " tri-sex " ( authenticity, relevance, and legality ). Among them, in terms of relevance and legality, electronic data evidence is no different from general evidence types. Therefore, the "New Evidence Regulations" do not stipulate it, but focuses on its authenticity . This is because electronic data evidence has a certain degree of virtuality and liquidity compared with other evidence, and there is a certain time and space difference between the information itself and the storage medium. As a new type of evidence, electronic data evidence itself needs to be regulated by new legal norms.
Article 93 of the "New Regulations on Evidence" provides consideration for the review of the authenticity of electronic data, and gives judges discretion, providing guidance for judges to accept and recognize electronic data.
1 Review of authenticity
Article 93 of the "New Regulations on Evidence" stipulates factors that need to be paid attention to when reviewing the authenticity of electronic data evidence. It is briefly summarized as:
(1) The authenticity of the carrier
refers to the media and equipment that store electronic data and maintain their originality, identity and integrity in the litigation process, and there is no situation of forgery, alteration, replacement, destruction, etc.
(2) The authenticity of the data itself
refers to whether the electronic data is true, whether it is consistent with the original data, and whether it is modified, deleted, added, etc.
(3) The authenticity of the content
Whether the content recorded in electronic data evidence is a true expression of intention, and whether it can prove the facts of the case.
As an example, the two parties entered into a sales contract through WeChat chat. In the lawsuit, the plaintiff provided the WeChat chat record as evidence to prove that the two parties had reached a sales contract legal relationship .
At this time, the first thing to do is to check whether the mobile phone is the mobile phone that sent the above chat content. This is the authenticity of the carrier. Secondly, we must review whether the above WeChat chat records are complete and true, whether there are any modifications or deletions, etc. This is the authenticity of the data itself. Finally, we must review whether the content expressed in the WeChat chat record is the true expression of intention of both parties, which is the authenticity of the content.
2 Presumption of authenticity
Article 94 of the "New Regulations on Evidence" stipulates the situation where electronic data evidence presumes to be true.
(1) Evidence of electronic data that is not good for oneself submitted or kept by the parties
Here it can be linked to the self-confidence system, that is, the parties submit the evidence of electronic data that is not good for oneself to the court, and the judge can presumably determine the authenticity of the evidence of the electronic data.
(2) Provided or confirmed by a neutral third-party platform that records and saves electronic data evidence or confirms
Generally, the methods of proof of electronic data evidence include:
• self-certification , that is, the parties themselves save it through taking photos, downloading, screenshots, etc.;
• notarization and proof of proof of proof of proof of proof of electronic data according to the application of the parties;
• notarization and proof of proof of proof of proof of the authenticity and legality of the electronic data evidence in accordance with the legal procedures;
• timestamp proof , that is, the electronic data submitted by the party, can prove its authenticity through the technical means of trusted timestamp or through the electronic evidence collection platform authentication;
• blockchain proof , that is, a technical solution composed of multiple network technologies such as timestamps, asymmetric encryption algorithms and hash algorithms , which forms a chain through decentralization and compliant blocks that meet the conditions and have computing power. Each block on the chain stores the evidence storage method of complete transaction information.
Except for self-storing evidence, the other three ways of are provided or confirmed by third-party platforms. Because it is neutral, the electronic data it stores and provides is complete and reliable, so can be presumed to be authentic .
(3) Formation of
If the electronic data evidence produced by the parties for the purpose of litigation is inconsistent with the electronic data evidence formed in normal business activities, it can be presumed that the latter has greater probative power.
(4) Keep
Archives are original records formed and preserved in social activities by state institutions, social organizations and individuals in social activities and preserved text, images, sounds and various other forms of reference. Electronic data evidence for electronic archive management usually strictly follows the laws, regulations and norms of archive management, with high reliability, reductibility and verifiability, and its authenticity can generally be presumed.
(5) Save, transmit and extract
If the parties agree on the preservation and transmission of electronic data evidence, it has fully guaranteed the autonomy of both parties, and it can indirectly determine that both parties have recognized the authenticity of the data stored in this way, so its authenticity can also be directly assumed.
(6) Notarized electronic data evidence
Article 94, paragraph 2 of the "New Regulations on Evidence" specifically stipulates that notarized electronic data evidence can presumably determine its authenticity. This also complies with Article 10 of the "New Evidence Regulations" "For facts that have been proved by valid notarized documents, the parties do not need to provide evidence to prove the facts."
Note that whether it is the authenticity of the court review or the presumptive authenticity, when the court deems it really necessary, it can initiate the appraisal or inspection procedure to review and judge the authenticity of electronic data with the help of professional opinions.
Law reference
"Civil Procedure Law of the People's Republic of China" (2021 amendment)
Article 66 Evidence includes:
(I) statements of the parties;
(II) documentary evidence;
(II) physical evidence;
(IV) audio-visual materials;
(V) electronic data;
(V) electronic data;
