Insights

How to collect evidence of derailment in Ningbo to be effective? 5 types of evidence recognized by the court

Ningbo Author：LuXu WANG

The raising of 1. issues

A woman came to consult: she found that her husband had an improper relationship with a third party, with WeChat chat records and several photos.

She wants to sue for divorce and damages, but does not know whether the evidence is sufficient, what other evidence is recognized by the court, and how it can be legally and effectively collected.

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

2. legal basis

  • compensation for divorce damages: Article 1091 of the Civil Code stipulates that if one of the following circumstances leads to divorce, the innocent party shall have the right to claim damages: (1) bigamy; (II) cohabitation with another person; (III) domestic violence; (IV) maltreatment or abandonment of family members; (V) other major faults. The derailment can be included in the category of "other major faults.
  • The wrong party shall divide less property: Article 1087 of the Civil Code stipulates that in the event of divorce, the common property of the husband and wife shall be disposed of by agreement between the two parties; if the agreement fails, the people's court shall, in accordance with the specific circumstances of the property, take care of the rights and interests of the children, the woman and the innocent party. The principle of judgment.
  • Legality of evidence: Article 106 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law stipulates that evidence formed or obtained by methods that seriously infringe on the legitimate rights and interests of others, violate the prohibitive provisions of the law, or seriously violate public order and good customs shall not be used as the basis for determining the facts of the case.

3. core points

1. Repentance/Guarantee-the most direct and powerful evidence

if the derailer writes down written materials that admit the fact of derailment, such as a letter of repentance, a letter of guarantee, a letter of apology, etc., this is the evidence with the highest degree of recognition by the court. It is recommended to keep the originals properly.

2. Chat records and call recording-pay attention to integrity

chat records such as WeChat and SMS can be saved in screenshots, but the original carrier should be kept. Call recording shall ensure that the recording is clear and complete, and the recording itself does not violate the law. According to the Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), WeChat and other electronic evidence has many defects in proof and is difficult to be accepted. It is safer to retain the original mobile phone and complete dialogue and notarize it when necessary than simply taking screenshots.

3. Photos and videos-pay attention to the legality of the shooting scene

photos and videos taken in public can generally be used as evidence. However, taking pictures in other people's private places may involve invasion of privacy and the legality of the evidence is in doubt.

4. Witness Testimony-Insiders Testify in Court

the testimony of neighbors, friends, colleagues and other insiders can be used as supporting evidence. In principle, witnesses need to testify in court, and the effectiveness of written testimony is weak.

5. Opening records and transfer records-can be accessed by the court.

Hotel room records, 520/1314 and other special amount transfer records, purchase gift records, etc. Part of the records may be accessed through a court application for an investigation order.

4. boundary conditions

  • illegal evidence collection is invalid: evidence obtained by installing wiretaps in other people's residences, secretly photographing equipment, or hiring private detectives to track or break into other people's residences may not be accepted by the court due to infringement of other people's privacy rights.
  • Evidence of derailment alone is not equal to damages.: Only evidence of infidelity does not necessarily lead to high compensation, and the court will determine the amount of compensation, usually not high, based on factors such as the degree of fault and the consequences.
  • Derailment does not mean that the derailment party is generally not sentenced to "clean out", but the court will take due care of the innocent party when dividing the property.
  • Pay attention to the statute of limitations: if the other party is found cheating after divorce, he should claim his rights within three years from the date when he knew or should have known that his rights were damaged.

5. operational steps

  1. save the original existing evidence: chat records keep the original mobile phone, photos save the original documents, avoid keeping only screenshots or copies.
  2. Let the other party admit in writing: try to communicate and let the other party write a letter of repentance or guarantee, which is the most direct evidence.
  3. Organize transfer records: collect transfers, red envelopes, shopping records, etc. from the other party to a third party, and mark the amount and time.
  4. Seek witness support: find an insider and ask him to prepare to testify in court or give written testimony.
  5. If necessary, apply for court access: for hotel records, bank flow, etc., you can apply for a court investigation order in the lawsuit.
  6. Consult lawyers to evaluate evidence: organize the collected evidence and give it to lawyers to evaluate the effectiveness of evidence and litigation strategies.

6. common mistakes

myth 1: With evidence of infidelity, the other party can get out of the house. Positive solution: the court generally will not judge the derailor to leave the house, but will take proper care of the no-fault party in the division of property, the proportion is usually not too large.

Myth 2: It is legal to find a private detective to follow the candid camera. Positive solution: illegal tracking and candid shooting may infringe on the privacy of others, the evidence obtained may not be accepted, and even bear legal responsibility.

Myth 3: It is useless to get evidence after divorce. Positive solution: if it is an infidelity not found at the time of divorce, damages can still be claimed separately within three years from the date of knowing the evidence.

The legal collection of evidence is the premise of safeguarding one's own rights and interests, and it is recommended to carry out it under the guidance of a lawyer to avoid invalid evidence or legal risks.

Summary of 7. relevant laws and regulations

the main legal provisions covered in this paper include:

  • article 106 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law
  • article 1087 of the Civil Code
  • 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 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 purpose must first be clear: it is mainly used to prove emotional status, support claims for damages, and may also affect the judgment of support arrangements. It is not that the more you get, the better. Therefore, there should be trade-offs and collect around "what can be explained" to avoid piling up a lot of materials that will eventually be unusable. Effective materials usually include chat records and images that reflect the relationship between the two parties, common consumption and travel records, testimony of relevant personnel, and vouchers that can explain the flow of property. The key is truthfulness, coherence, and clear direction.

The method of obtaining evidence must be legal. Materials obtained by intruding into other people's accounts, installing wiretapping and photo-stealing equipment, and entering other people's residences without permission may not be adopted because of the violation of the law, and will also put you in new legal risks. Relatively secure are materials that they are entitled to or can properly obtain, such as bank records, joint consumption records, written materials voluntarily left by the other party, and evidence obtained by applying to the court for access or issuing an investigation order in a lawsuit. The evidence should keep the original carrier, and try to keep the original documents and acquisition process in addition to the screenshots.

After getting the evidence, the usage should also be strategic. It can be used as a bargaining chip to push the other party to make concessions on property and upbringing, or as proof in litigation; but spreading it around as a tool of retaliation may involve invading the privacy of others and instead make yourself passive. In practice, it is more effective to first internally evaluate what claims these materials can support and whether they are worth spending a lot of energy on them, then decide whether to negotiate or prosecute, and spend the limited time on the facts that really affect the outcome.