Through chatting with the party's WeChat, it is found that the biggest difficulty in this case is that the party tore his face after a dispute with the other party (the defendant in this case), and even deleted the other party's WeChat in anger, resulting in the lack of key evidence to determine the facts.
Describe the case briefly.
In June, 20021year, Huang found our client Lu through a friend's introduction. Huang bought a townhouse in Fuyang, Hangzhou, and asked Lu to help decorate it. Because the two sides were introduced by friends, on the one hand, out of trust, on the other hand, out of personal feelings, the two sides did not sign a written renovation contract, but only reached an oral agreement.
During the construction process, the decoration payment will be paid synchronously with the completion of the phased quantities. During the period, Huang paid Lu a decoration fee of * * * 300,000 yuan in four times. After the renovation work was completed in September, Lu sent the final project settlement list to Huang for confirmation through WeChat. According to the settlement list, the total amount of decoration money is 400,000 yuan, and after deducting the 300,000 yuan already paid, 654.38+10,000 yuan still needs to be paid. Huang also confirmed the decoration payment on WeChat, but the two sides did not sign a written statement. Since then, Huang has not paid the remaining 6,543,800+renovation funds.
When Lu saw Huang's delay in payment, he urged him, but what Lu did not expect was that Huang was uncharacteristically picky about the quality of the project at this time and threatened that these quantities were only worth 300,000 yuan. Now that it has been paid in full, there is no need to pay the rest. Lu later sent Huang WeChat and SMS to urge him many times. I didn't know that Huang actually deleted Lu's WeChat, and Lu was angry and deleted Huang.
In June+10 this year, Lu found our boss and asked him to think about how to get the money back. The case was handed over to me.
After taking over, I asked the customer to send me the evidence, and the evidence I got mainly included the following four copies:
1, a set of construction atlas, mainly the on-site construction drawings taken by land;
2. Screenshot of SMS urging payment for decoration;
3.* * * Four screenshots of payment of 300,000 yuan, with the remark "Decoration Payment";
4. The settlement list listed by Lu.
After a brief analysis, the following key issues are listed:
1. There is no written contract between the two parties, only an oral agreement. How do they prove the existence of contractual relationship?
2. Where is the jurisdiction of the case?
3. How to prove the remaining decoration money?
Question 1: Although both parties have not signed a written contract, the oral agreement is also protected by law. It's just that there is no audio or video recording in the process of reaching an oral agreement, leaving no trace. How can we prove it? In fact, this problem is not difficult. Providing evidence of both parties' performance of the contract (namely, evidence 1 and evidence 3) can indirectly prove that both parties have a contractual relationship.
The second question, because the decoration dispute in renovation contract belongs to the cause of action under the construction project contract dispute, it is subject to the exclusive jurisdiction of the location of the real estate. Simply put, it is under the jurisdiction of the court where the house is decorated, so the jurisdiction court naturally falls to the Fuyang District People's Court in Hangzhou.
The third question, because the two sides deleted each other's friends, the key chat records were missing. Even if Hwang confirmed Lu's settlement list on WeChat, it can't be proved now. So at that time, I had to submit the SMS screenshot (evidence 2) and evidence 4 of Lu's urging to pay for the decoration, and apply to the court for project cost appraisal.
There is a problem to be solved before filing a case. Lu only knows Huang's name and telephone number, but doesn't know the specific address (the house renovated in Fuyang is not her current address) and ID number. In fact, this problem is not difficult. I took the power of attorney, a copy of lawyer's card, a letter of introduction from the law firm and a ***4 application form for proof of population information inquiry, with Huang's basic information (as long as the name is enough) on it, and successfully transferred it to Huang's household registration information at the police station near the law firm, which contained the information we needed.
A few days after the hospital submitted the filing materials, Fuyang court called and said that the materials we submitted could not prove that the renovated house was in Fuyang. Because this problem affects whether Fuyang court has jurisdiction, the court asked me to apply for an investigation letter offline (confirming with the court that it is an investigation letter, not an investigation order), and then obtain the proof of real estate registration information, or find other ways to prove that the house is in Fuyang District. It happened that the epidemic situation in Hangzhou was a bit serious during this period, and there seemed to be confirmed cases in Fuyang, so I was too lazy to apply for an investigation letter all the way. Just as I was worried about how to solve this problem, it suddenly occurred to me that the customer told me that he bought a lot of decoration materials when he was supervising the work on the spot, which were sent directly to Huang's house. Contact Lu immediately and ask him to send me all the Taobao screenshots of buying decoration materials. Sure enough, the place where the goods are received is where the Huang family is. Two days after the micro-court resubmitted, the case was established, and then the court informed me to mediate first. If mediation fails, I have to make an appraisal record (I have applied for project cost appraisal before).
On the day of mediation, after listening to the general explanations of both parties, the mediator will show the project settlement list submitted in advance to the other party, and ask the other party to check whether we have carried out the construction of each item on the list as required. The other party is an old lady in her late sixties. She looked at the project manual in her left hand and reading glasses in her right hand, and then marked all the projects we had done. The last check, basically all the projects she approved, only five or six have objections, thinking that we didn't do it at all, and the decoration funds corresponding to these five or six projects are around 40,000. In addition, although she has no objection to other projects, she thinks our price is on the high side. Of course, we don't agree with all her objections.
In fact, the process of mediation is the process of compromise between the two sides. As an intermediary, the mediator discusses the mediation plan with both parties and then reaches an agreement as far as possible.
The mediator asked us to wait outside first, and he talked to the defendant first. After chatting for a few minutes, let's come in and talk. Let's talk about this case first. If we applied for appraisal at that time, it would be impossible to draw a conclusion with high probability, because the calculation standard of many of our engineering projects is not objectively quantifiable unit square meters (m2), but working hours. For example, the garbage transportation project needs one worker (one worker works for one day), and the door and window demolition needs two workers, but it is impossible to quantify the unit of "worker" in the appraisal. Even if it can be quantified, the garbage has been removed and the door and window industry has been demolished. How to identify this? And most of the items in the settlement list use this unit. After talking for a long time, what the mediator means is that it is impossible to identify this path with great probability. Let's give up the appraisal and mediate better. Later, he reported a plan to us, saying that since there was no evidence to prove that the two sides had settled accounts and the defendant didn't recognize several of them, he would deduct the unrecognized ones, that is, deduct 40,000 from 6,543.8+10,000, and ask us if 60,000 was acceptable. I looked at the client, and then he slowly spit out three words: OK! Then let us out, and he will talk to the defendant again.
Standing outside the door, the client asked me what I thought. To tell you the truth, I don't understand the appraisal either, but I think what the mediator said is reasonable, and it may not be appraised at that time. In this case, once a lawsuit is filed, we have no evidence to prove that the project is worth 400,000 yuan, which will be very unfavorable. After that, the parties were silent and did not speak again. After a while, the mediator let us in again and the defendant came in. Then the mediator said that the defendant only gave 40,000 yuan and asked if we could accept it. My client and I are a little dumbfounded. What happened? The mediator talks to the defendant first, and then talks to us. Did they give us a plan of 60 thousand when they talked without a plan for the first time Now you say 40 thousand? The emotions of the parties are still restrained. A few seconds later, they said 50 thousand yuan. If they can't do it, they will be recognized. Their attitude is very loud. The other party said forget it, then picked up the phone and called his lawyer, saying that he had not turned and was ready to respond.
The clerk began to make appraisal records. At this time, our client got up and called the mediator out of the house. After a few seconds, he came back and said that 40,000 is 40,000. Signed a mediation agreement, got up and went home.
On the way to the subway station, the parties were restrained. They just lamented that after 20 years of transformation, such people are rarely met today. Today, they spent 60,000 yuan on a class. At this point, the case is over.
We should not forget the past, but learn from the future. Although the case is small, there are still experiences for reference. The author summarizes it as follows:
Many disputes occur or become passive after they occur, largely because the parties lack the awareness of evidence. Take this case as an example, mainly in the following two aspects:
First of all, there is no written contract, and then there is no prior agreement on the quantity and project cost, which makes it very difficult to prove later.
Secondly, knowing that there was a dispute, I deleted the other party's WeChat on impulse, resulting in the lack of chat records.
In view of the above problems, the author provides the following suggestions:
1. In civil and commercial activities, it is best to keep written evidence for common things such as loans and contracts to prevent future disputes from producing evidence.
Some people on the internet ridiculed the profession of lawyers, saying that it is terrible to marry a lawyer, and divorce may not get a penny. Of course, this kind of ridicule is somewhat exaggerated, but it reflects the lawyer's strong sense of risk and evidence. Whether it is civil and commercial activities or emotional life, even if the relationship between the two parties is inseparable in the early stage, lawyers will consider that in case of war in the later stage, they will definitely have something to hold you, so they will keep the evidence in advance just in case. Ordinary people should have this awareness, especially when it comes to cooperative relations and money exchanges, and any behavior should leave traces. Of course, ordinary people are not proficient in the law after all, and even if they sign a written contract, they may be buried by a willing heart. As everyone knows, a seemingly legal contract may be full of traps everywhere. Therefore, it is extremely necessary to find a lawyer and friend for consultation, investigation and mine clearance when signing the contract.
However, we must also admit that China is a personalized society, and the cooperation between acquaintances depends more on mutual trust or * * * reaching a cooperative relationship with trusted people, so one party often can't help but ask the other party to sign a written agreement with himself. But this question must be clear: trust cannot be passed on. How can I put it? For example, Zhang San trusts Li Si and Li Si trusts Wang Wu. Does that mean that Wang Wu must be trusted by Zhang San? Not necessarily. If trust can be transmitted, then according to this logic, will Zhang San finally trust someone who has nothing to do with himself or even has a grudge against himself? How is that possible?
If the two sides really rely on oral communication instead of signing a written agreement when cooperating, then we should also find ways to leave traces on the communication matters. For example, every time a communication is returned, it will be sent to the other party via WeChat or SMS in the form of a memo for confirmation, and the content of oral communication will be written down.
2. How to recover WeChat chat records and short messages after they are accidentally deleted?
In this case, because the two sides deleted each other's friends, the parties tried many times and could not recover. The author understands that it seems that it is possible to recover without deleting friends and only deleting chat records. Someone has made a professional and comprehensive summary of this issue, so I won't go into details here.
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Note: I am a lawyer who has not practiced in Hangzhou for a long time and has little knowledge. I'm just here to share my experience in handling cases. If there are any omissions in writing, please criticize and correct them. Thank you!