How Ningbo Legally Collects Evidence of Derailment
Ms. Li suspects that her husband is cheating and wants to collect evidence for divorce, but she is worried that the illegal method of evidence collection will lead to invalid evidence-this concern is absolutely necessary. Conclusion First: Evidence of derailment should be collected through legal channels. Common effective evidence includes chat records, transfer records, photos and videos, witness testimony, room opening records, etc. The evidence collection process shall not infringe upon the privacy and legitimate rights and interests of others, and the evidence obtained by illegally invading houses, installing eavesdropping equipment and stealing account information may be excluded due to serious violations of the law. The value of evidence is not in "how ruthless", but in "legal, complete and chain". This paper clarifies the type of evidence, the boundaries of evidence, the steps of operation and local practice.
1. types of evidence and probative power: which of the eight types of evidence are most useful
article 66 of the the People's Republic of China Civil Procedure Law lists eight types of evidence: statements of the parties, documentary evidence, physical evidence, audio-visual materials, electronic data, witness testimony, expert opinions, and inquest records. Corresponding to the derailment scene, the five most commonly used in practice and the analysis of probative force are as follows: first, chat records (electronic data)-The ambiguous or self-confessed content in WeChat, SMS and email shall be kept in the original carrier, recorded completely and paid attention to identity correspondence. A single screenshot has weak probative force and shall be mutually verified with other evidence; second, transfer records (documentary evidence/electronic data)-- Records of transfers to third parties, red envelopes, and payment of consumption on behalf of third parties can prove that economic transactions and relationships are close, and bank flow is particularly strong; third, photos and videos (audio-visual materials)-Intimate photos and videos taken in public places or one's own home can usually be accepted, but other people's private spaces cannot be secretly photographed. Fourth, witness testimony-the testimony of informed neighbors, friends and colleagues needs to testify in court. The testimony of relatives is relatively weak due to the influence of the relationship between the witness and the parties. Fifth, records of opening rooms and travel-hotel check-in, air tickets, travel tracks, etc, the need to obtain it through a court investigation order is a key evidence of "sustained and stable living together" (cohabitation). It should be noted that the law on the "derailment" itself does not have a special standard of evidence, the parties need to prove the fault plot-general ambiguity, infidelity, cohabitation, bigamy is the degree of progressive four layers, corresponding to different legal consequences (affecting the division of property, constitute the legal cause of damages, constitute a crime). Evidence should be collected around the target level of the corresponding strength of evidence, rather than piling up irrelevant materials.
Legal boundaries of 2. forensics: three red lines and one main line
article 106 of the interpretation of the Supreme People's Court on the application of the civil procedure law of the the People's Republic of China of China stipulates that evidence formed or obtained by means of seriously infringing upon the legitimate rights and interests of others, violating the prohibitive provisions of the law or seriously violating public order and good customs shall not be used as the basis for determining the facts of a case. According to this, evidence must hold three red lines: first, no illegal intrusion into other people's homes, hotel rooms to obtain evidence-- Forced to break the door, break into the third party's residence to shoot, the means are illegal, the evidence is excluded and may constitute infringement; second, no wiretapping or photo-stealing equipment shall be installed.-- The installation of candid camera recording equipment in the other party's vehicle, office and third party's residence is a serious invasion of privacy and the evidence cannot be used; third, it is not allowed to obtain information by hacking or stealing account passwords.-Cracking records obtained by WeChat, email and cloud disk, the source is illegal, and may also bear infringement or criminal liability. The "main line" of legal evidence collection is: obtaining evidence in public space and self-owned space, obtaining third-party records through legal procedures, and making the source of evidence explainable. Specifically, intimate photos taken in public places (shopping malls, residential areas, company gates, restaurants) can usually be taken. The installation and monitoring of one's own home found that one's spouse took someone home is evidence collection in one's own space. However, if the shooting content involves the privacy of a third party such as nudity, it is still necessary to be cautious in dissemination and use. Records held by third parties such as banks and hotels should go through the formal channels of court investigation order or application for ex officio, not the gray path of "find someone to look up.
3. actionable steps: from discovery to submission
- save existing records: save the chat records and transfer records in mobile phones and computers for the first time, keep the original carrier, and record the key contents completely; Do not delete any records, including the "unfavorable" parts.
- Forensics in legal places: take intimate photos and videos in public places, pay attention not to infringe on other people's privacy and not disturb public order; Take proper measures when shooting your own home.
- Find witnesses: contact informed neighbors, friends, colleagues, explain the need to testify, if necessary, apply for witnesses to appear in court.
- Application for investigation order: need to open a room record, bank flow, within the time limit of proof to the acceptance of the court written application for investigation order, by the licensed personnel to the hotel, banks and other institutions to obtain, or apply to the court ex officio investigation-Ningbo court practice supports this path.
- Fixation and submission: classify and number the evidence, make a list of evidence, and explain the source of each evidence and the facts to be proved; Important electronic evidence can be notarized or stored by a third party to prevent loss; In court hearings, cross-examination shall be organized according to authenticity, relevance and legality.
In the process of obtaining evidence, the integrity of the evidence chain should also be evaluated simultaneously: the evidence that "cohabitation" requires continuous and stable living together, and the evidence that "bigamy" requires living together in the name of husband and wife. Only a set of ambiguous photos is far from enough to support the heaviest legal consequences.
4. common mistakes
myth 1: You can do anything to obtain evidence. Positive solution: illegally obtained evidence may be excluded, and the infringement in evidence collection may lead to counterclaim or public security and criminal liability, which is not worth the loss.
Myth 2: A screenshot of the chat record is enough. Positive solution: screenshots are easy to forge and can be edited, so the original carrier should be kept and the screen should be recorded completely. It is difficult to obtain credibility only by printing screenshots (Ningbo family trial is especially strict in this review).
Misunderstanding 3: You can check and check each other's mobile phones casually. Positive solution: evidence should be obtained through legal means, and there is a dispute over invasion of privacy when the other party is not prepared to unlock the mobile phone. The safe way is to record the key contents on the screen on the spot and notarize them.
Myth 4: The more evidence, the better. Everything must be submitted. Positive solution: materials that have nothing to do with the facts to be proved and whose sources are unknown dilute the strength of evidence, and the chain of evidence should be selected and organized around the level of fault.
5. four common causes of failure and coping
in cases where there is sufficient evidence but the case is lost, the cause of failure is often not "lack of evidence" but "poor use". Summarize four types of high-frequency failure causes and countermeasures: ① Illegal evidence collection is excluded-evidence obtained by cracking account numbers and secretly photographing private spaces cannot be used. The countermeasure is that all evidence should follow the legal path, rather than losing one point of legality. ② Single evidence cannot support the claim-only a few screenshots want to prove cohabitation, and it is almost inevitable to fail. The countermeasure is to organize the evidence chain according to "time and place behavior, let multiple evidences point to the same fact; ③ The identity of the object cannot be locked-the nickname in the chat record and the identity of the transfer payee do not match, and the court cannot determine" that person ". The response is to fix the real name information of the other party (mobile phone number, real name, account name, common photo, voice content) in advance; ④ The claim is misaligned with the evidence-claiming damages but only submitting evidence of emotional breakdown, advocating to recover the gift but without the transfer voucher, the way to deal with it is to think clearly" what do I want to prove and whether the evidence is enough "before filing the case". Before the court session, it is far more reliable to do a "simulated cross-examination", pick faults from the other side's point of view, and make up for the shortcomings in advance.
6. FAQ
can the intimate photos in the other party's cell phone be taken directly as evidence?
Look at the scene and the way: when the other party voluntarily displays or looks at it on the spot, the synchronous recording screen is fixed, and the dispute is small; Those who unlock the mobile phone, remake and steal the transmission while they are not prepared may be deemed to infringe privacy and excluded. It is safe to fix it completely on the spot by recording the screen and notarize it as soon as possible, while saving the contextual information such as the time and place of shooting.
Can you prove cohabitation by taking photos of a third party entering and leaving the hotel?
A single entry and exit into the hotel can only prove that the two parties have contact, but cannot prove the cohabitation state of "continuous and stable living together"; Comprehensive judgment should be made in combination with the frequency of room opening, residence records, and evidence of living together. The combination of photo opening records and chat records is likely to be close to the standard of proof of cohabitation.
How to adjust the room opening record? Can an individual check at the hotel?
Individuals have no right to retrieve other people's check-in records directly from the hotel, and the hotel is not allowed to provide them to unrelated personnel. The correct way is to submit an application to the court in the lawsuit, stating the scope of records to be retrieved and the purpose of proof, which shall be retrieved by the court's investigation order or investigated ex officio; If it is impossible to obtain it before filing the case, it may be sued with other evidence before applying in the lawsuit.
Can I use the camera of my spouse taking someone home?
The installation of monitoring in self-owned residential buildings belongs to the control of self-owned space and is generally not considered illegal. However, if the shooting content involves highly private images such as nudity, it is limited to litigation evidence and cannot be spread or spread, otherwise it may constitute infringement. If the monitoring system is installed in other people's homes or public locker rooms and other places, it is illegal to obtain evidence.
Does evidence need notarization? Can electronic evidence without notarization be used?
Notarization is not a prerequisite for the entry into force of electronic evidence, but it can significantly enhance the power of proof: notarization fixes the process of "the record of evidence at the time is real and has not been tampered with", which can effectively counter the other party's defense that the record is forged. For cases with large amounts of money and disputes, it is recommended to notarize the preservation of key electronic evidence.
Practical Experience of 7. Lawyers
draw the red line clear before taking evidence. The value of evidence lies in being legal, complete, and able to be linked, not "tough enough". You can't illegally invade other people's houses, install eavesdropping equipment, and steal the other party's account password. What you get in these ways may not only be excluded, but also turn you from a reasonable party to a passive party. So think clearly before you start: can this line be touched? Will it bite you after touching it? It is safer to decide what to check after figuring it out than casting a net blindly.
There are plenty of ways to obtain legal evidence. It is generally allowed to keep the chat and transfer records sent to you by the other party. The key point is to keep the original mobile phone and continuous context. Pay attention to the abnormal flow of husband and wife's common property, such as large amount of money transfer, abnormal consumption credit card and records of common travel, which are all valuable clues. Invoices, itineraries and witness testimony that can be checked through public channels are also worth fixing. For electronic materials such as chat and transfer, notarization or time stamp fixation should be done as soon as possible to prevent the other party from withdrawing or deleting the evidence from being lost.
Finally, the proof strategy and the sense of proportion. A single piece of evidence often cannot support the claim. Time, place, person, and funds must be linked into a chain to serve a specific goal-whether to judge a divorce, whether to compensate, whether to fight for custody or to prevent the transfer of property. Different goals require different evidence. It is also necessary to persuade the parties: do not break in without authorization, do it, and do not publicly spread the privacy of others. These actions may attract counterclaims from the other party, but instead get the party who was originally in charge into trouble. Evidence is a bargaining chip. Whether or not to use it depends on what the other party cares about most.
The essence of legally collecting evidence of derailment is to take a balance beam between "probative force" and "legitimacy": the more critical evidence is, the more legally obtained, and the more commonly used electronic evidence is, the more standardized and fixed. Strategically, it is suggested to "walk on three legs"-fix yourself (original carrier, recording screen, shooting in public places), retrieve according to law (investigation order to transfer room records and running water), and external corroboration (witnesses, family investigators), so that the evidence can form a closed loop of mutual confirmation. At the same time, keep in mind that the purpose of obtaining evidence is to protect rights rather than retaliate. The "vicious move" that crosses the legal red line will not only fail to save oneself, but may also make the right unreasonable. The right way to turn evidence into rights is to act immediately after discovering abnormalities, to regulate fixation and to evaluate rationally.