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How to collect evidence of derailment in Ningbo? 5 types of evidence recognized by the court and the main points of collection

Ningbo Author：LuXu WANG

The raising of 1. issues

last month, she received a client. After she found out that her husband was cheating, she secretly took chat records and transfer records in her husband's mobile phone, and installed a locator in her husband's car.

She came to me with this evidence, wanting to know which ones could be used in divorce proceedings and which might be illegal.

This paper will focus on the above issues, from the legal provisions, practical operation, typical cases of three dimensions of the system.

5 Classes of Derailment Evidence Recognized by the 2. Court

according to Article 66 of the Civil Procedure Law and judicial practice, the following five types of evidence have strong probative force in proving the fact of derailment:

1. Documentary evidence

including the derailment party to write a letter of guarantee, repentance, apology, etc. This kind of evidence is the most direct and powerful material to prove derailment.

Collection Points:

  • require the other party to write in his own handwriting and date;
  • the content should be specific, stating the derailment object, time, place and other key information;
  • keep the original, preferably take a photo or scan a backup;
  • if the other party is not willing to write, can be guided by communication to admit, and recording.

2. Electronic data

including WeChat chat records, SMS, email, social software chat records, transfer records, etc. According to the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings, electronic data belongs to the category of legal evidence.

Collection Points:

  • save screenshots: take screenshots of key chat records and keep information such as time, avatar, nickname, etc;
  • recording screen preservation: the better way is to record the whole process, from opening the chat software to displaying the chat record to prove the authenticity of the record;
  • original carrier: keep the original equipment such as mobile phones and computers that store chat records, which may need to be presented during court hearings;
  • transfer record: If the other party transfers money to a third party, it can be proved by bank flow, Alipay bill, WeChat bill, etc.

Note:

  • can not obtain the chat record of the other party by illegal means (such as cracking the password, planting Trojan horse, etc.);
  • if it is a record found in your mobile phone (such as the other party logging in with your mobile phone and forgetting to exit), it can be used as evidence.

According to Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), WeChat and other electronic evidence in the divorce case of the court has many defects in proof and is difficult to be accepted. Only screenshots, lack of original carriers or inability to demonstrate the complete process are easily affected.

3. Photos and videos

including the cheating party and the third party intimate photos, videos, etc.

Collection Points:

  • photos and videos should be clear and able to identify people and scenes;
  • keep the original file, not just the compressed version;
  • indicate the shooting time and place;
  • if someone else is invited to film, the photographer needs to testify in court.

Legal boundaries:

  • photos and videos taken in one's own home of a spouse living with another person can usually be used as evidence;
  • in other people's residence, hotel room and other private space, may violate the privacy of others, the evidence may be excluded;
  • tracking candid photos and squatting for a long time may be suspected of violating privacy or provoking trouble.

4. Witness Testimony

include testimony from informed neighbors, friends, and co-workers.

Collection Points:

  • witnesses need to appear in court for questioning, and written testimony is weak;
  • to select persons who have no interest in the parties as witnesses;
  • the witness's testimony should be specific, not "I heard he cheated" in general ".

5. Alarm records and administrative penalty records

if the derailment involves prostitution, bigamy and other illegal acts, the alarm record, administrative penalty decision, etc. are strong evidence.

Collection Points:

  • when the other party is found to be whoring, the police's police records and interrogation transcripts are strong evidence;
  • if the other party and a third party cohabit in the name of husband and wife, they can report the crime of bigamy to the public security organ;
  • obtain the administrative penalty decision of the public security organ.

3. these forensics are risky

1. In the other car installed GPS locator

risk: Suspected violation of the privacy of others. Although spouses have a certain right to know, installing a locator on each other's vehicle without consent may be deemed to be illegally obtaining personal information. What is more serious is that if we follow to the residence of a third party and secretly photograph it, it may violate the criminal law.

2. Hire a private detective to follow the candid camera

risk: The private detective industry has no legal status in our country. Many private detectives use illegal methods such as tracking, candid filming, and wiretapping to obtain evidence. Evidence obtained through these means may be excluded by the court and may even make the principal jointly and severally liable.

3. Illegal intrusion into the residence of others to shoot

risk: Entering a third party's residence or hotel room to shoot without permission, suspected of illegal intrusion into the house, the evidence must be excluded, and criminal responsibility may also be investigated.

4. Spread derailment information

risks: sending evidence of infidelity to moments, WeChat groups, social media, etc., may infringe on the reputation and privacy rights of the other party and a third party, and face civil compensation or even administrative penalties.

The basic principles of legal evidence collection in 4.

Principle 1: The means of evidence should be legal.

Evidence must be obtained in accordance with the law, and evidence obtained by illegal means, even if the content is true, may be excluded by the court.

Principle 2: Respect the privacy of others

even spouses have a right to privacy. When collecting evidence, the legitimate rights and interests of others, including the privacy rights of the spouse and the third party, shall not be infringed.

Principle 3: Preservation of original evidence

try to keep the original carrier and original state of the evidence, and avoid keeping only copies. If notarization is required, you can go to the notary office for notarization of evidence preservation.

The Role of 5. Derailment Evidence in Divorce Proceedings

role 1: Prove emotional breakdown

derailment is one of the important factors in the determination of emotional breakdown. If there is sufficient evidence of infidelity, the court usually decides to divorce.

Role 2: Asserting damages

according to article 1091 of the Civil Code, the innocent party has the right to claim damages if one of the following circumstances leads to divorce: (1) bigamy; (II) cohabitation with another person; (III) domestic violence; (IV) maltreatment or abandonment of family members; (V) other serious faults.

Whether derailment is a "major fault" is controversial in judicial practice. In general, occasional extramarital sex may not constitute a "major fault", but long-term cohabitation with others is usually considered a "major fault".

Role 3: Strive for tilt in the division of property.

Although the Civil Code does not explicitly stipulate that the derailer should divide the property less, the court may appropriately favor the non-fault party when dividing the property, in accordance with the principle of "taking care of the rights and interests of the non-fault party" in article 1087.

Role 4: Fight for child custody

if infidelity is detrimental to the growth of the child (e. g., bringing a third party home, neglecting the child, etc.), it can be used as a favorable factor in the fight for custody.

6. practical recommendations

discover the first time after the derailment:

  • remain calm and do not act impulsively;
  • quietly collect evidence, don't startle the snake;
  • consult with professional lawyers to develop evidence collection and rights protection strategies.

Priority for gathering evidence:

  1. try to get the other party to write a letter of guarantee or repentance (the most effective);
  2. save electronic data such as chat records and transfer records;
  3. photos and videos taken in your own home;
  4. alarm records (e. g. involving prostitution and other violations).

When to hire a lawyer:

  • if complicated property division is involved, it is recommended to hire a lawyer as early as possible;
  • lawyers can guide legal evidence collection to avoid evidence being excluded;
  • lawyers can apply to the court to obtain key evidence such as bank flow and call records.

The above is a practical guide to the collection of infidelity evidence. Evidence collection is an important part of divorce proceedings, but it must be carried out within the legal framework, otherwise the loss may outweigh the gain.

Summary of 7. relevant laws and regulations

the main legal provisions covered in this paper include:

  • article 66 of the Code of Civil Procedure
  • article 1091 of the Civil Code

8. Practical Operation List

if you are facing related problems, it is recommended to follow the following steps:

  1. collect evidence: organize all written materials, transfer records, chat records, etc. related to the case;
  2. consult a professional: before taking any action, it is recommended to consult a professional lawyer to understand their rights and possible legal consequences;
  3. assessing costs and benefits: litigation requires time and economic costs, which need to be combined with the amount of the case and the probability of winning the case;
  4. choice of dispute resolution: give priority to negotiation or mediation, and then consider litigation if no agreement can be reached;
  5. note the statute of limitations: the law does not protect the person lying on the right to sleep, be sure to claim the right within the statutory statute of limitations.

Practical Experience of 9. Lawyers

to collect evidence of infidelity, the first principle is to give priority to legality, and never let yourself break the law in order to get the materials. Installing locators without permission, secretly photographing other people's private spaces, and illegally obtaining other people's communication records may not only be rejected, but may also change you from the party claiming rights to the party being held accountable. A more stable idea is to build a chain of proof around materials that can be obtained legally: personal guarantees or repentance, chat and transfer records between the two parties, joint travel records in public, and daily traces that reflect the continuity of the relationship.

The operation should focus on "continuity" rather than novelty details. The court is usually not concerned with a particular opening, but with the continued stability of the relationship, which directly determines its weight in damages and the division and maintenance of property. Therefore, electronic records should be fixed in a timely manner, retaining the original carrier, making a backup, indicating the time and source of acquisition. Timed up the material is much more powerful than piecemeal stacking.

After getting the evidence, we should link up with the rights protection instead of struggling with right and wrong alone. These materials can be used to support the determination of fault, damages, and tendencies in division and maintenance, and can be used as pressure points in negotiations, but it is not advisable to show them all too early. At the same time, exercise restraint and do not send evidence to the public platform or the other party under emotion, which may lead to new infringement or reputation disputes and complicate the originally favorable situation. Legitimality, restraint, leaving traces, can make the evidence really for your use, rather than against itself.