Legitimacy is contained in three characteristics of evidence, that is, in the process of litigation, if you want to adopt evidence, you must prove its source and legitimacy. So how to determine the legitimacy of civil evidence in practice? Lawyer 365 has compiled relevant information, and the following will explain it to you.
1March, 1995, the Supreme People's Court replied to the Hebei Higher People's Court with the document Fa Fu [1995] 2, saying: "The evidence must be obtained legally first, and only the evidence obtained through legal channels can be used as the basis for finalizing the case. It is illegal to record a conversation without the consent of the other party. The recorded materials obtained by this means cannot be used as evidence. " (hereinafter referred to as "95 reply") 1995 The Supreme Court has not yet unified the paradigm of judicial interpretation. According to the situation at that time, the reply had the effect of judicial interpretation and had a wide influence in practice. [1] Because this judicial interpretation has extremely important declaration significance, it shows that the principle of evidence legality must be adhered to in civil litigation, and the exclusionary rule of illegal evidence in civil litigation is established in the form of judicial interpretation (although it is not comprehensive). Its significance goes far beyond the case of unauthorized recorded materials, but involves the whole field of civil litigation evidence. Article 70, paragraph 1 (3) of the Provisions on Evidence in Civil Proceedings recently issued by the Supreme Court stipulates that "audio-visual materials obtained by legal means or unquestionable copies confirmed by audio-visual materials with other evidence" shall be confirmed. Because "legal means" is not further defined in the "evidence provision", it is self-evident that "95 reply" has become an important basis for applying the "evidence provision" in trial practice and examining whether audio-visual materials are obtained by "legal means". Therefore, it is of great and urgent significance not only to correctly understand and apply the Evidence Regulations in practice, but also to further improve the evidence legislation by thoroughly combing the jurisprudence contained in the "95 Reply", studying the positive or negative theoretical and practical significance of the evidence exclusion rules established by it and how to improve them, especially by combining the characteristics and requirements of the civil substantive law.
First, the connotation of the legality of evidence
Whether evidence has legitimacy and how to interpret it has always been one of the hot issues in the field of civil procedure law. On the one hand, some scholars insist that legitimacy is not the essential attribute of evidence, and it can be proved without legitimacy evidence. And that: if we think that litigation evidence must be legal, it is actually an admission of subjectivity in the identification of litigation evidence; If legality is regarded as one of the characteristics of litigation evidence itself, then the factual materials that have not been collected by judicial personnel in accordance with legal procedures and have not been examined and determined to find out the truth of the case are not evidence, thus denying the essential feature that evidence is an objective fact. On the other hand, because the connotation of "legitimacy" is difficult to define accurately, the issue of legitimacy itself is full of ethical color, wrapped in legal philosophy thinking and value judgment, and largely reflects a country's legal culture and realistic litigation policy choice, so it is confusing not only in theory but also in judicial practice. China's civil procedure law only stipulates the legality in principle, but does not stipulate the specific circumstances of illegal evidence and the exclusion rules of illegal evidence, which makes this problem more difficult.
Like most scholars, the author also believes that legitimacy should be the basic attribute of evidence. The legitimacy, objectivity and relevance of evidence are not contradictory. It is the legitimacy that embodies the stage of litigation and the independent value of procedural law, and also ensures the objectivity and fairness of the case from the mechanism, so I will not repeat it here. The crux of the problem lies in how to explain the principle of legality of evidence in theory. At present, there are many generalizations about the connotation of evidence legality in theory. For the convenience of analysis, the author gives a second example:
The traditional view is that the legality of evidence means that the collection, investigation and preservation of evidence must conform to the procedures stipulated in the Civil Procedure Law, and the evidence collected and provided in violation of the procedures cannot be used as the basis for determining the facts of the case; On the other hand, it means that some facts must have a specific form stipulated by law before they can be used as evidence in civil litigation, that is, "the admissibility of evidence." This expression is adopted by many textbooks and works and has certain authority.
Recently, there is a representative view that the legitimacy of litigation evidence refers to the fact that evidence must be obtained in accordance with legal requirements and legal procedures. As one of the attributes of evidence, legitimacy includes the following meanings: 1. Evidence is different from evidence materials. Evidence materials need not be legal, but evidence (in this case, case evidence) must be legal. 2. Evidence law, that is, the form of evidence must conform to the general form of evidence stipulated by the evidence legal system, that is to say, seven kinds of evidence stipulated by the Civil Procedure Law are called the general legitimacy of evidence forms; 3. Conforming to substantive law, that is, conforming to the special forms of expression required by substantive law norms, such as notarized evidence and registered evidence; 4. It must meet the requirements of the procedural law, including: (1) The principle of the procedural law stipulates that the collection of evidence must comply with legal procedures, and illegally collected evidence shall not be used as the basis for finalizing the case; (2) According to the specific provisions of the procedural law, if there is evidence, cross-examination must be conducted.
The above two generalizations have their own advantages and disadvantages. The former is concise, but it is easy to produce ambiguity. It is always inevitable to describe complex things with simple generalizations, which is an insurmountable obstacle to the conceptual law itself. The latter makes a comprehensive analysis of the meaning of the legitimacy of evidence, trying to scientifically define its connotation by demonstrating and fixing the extension of legitimacy in methodology, but it seems too lengthy. But the question I want to ask is not here. The author thinks that these generalizations are only literal explanations of the legitimacy of evidence, and the thinking path seems too narrow. At best, differences are different excavations of "legal" scope, so they all have their inherent defects. The root of the problem is that the word "he" in legitimacy itself must be properly explained.
In recent years, when studying the classification of civil acts, civil substantive law has basically reached a * * * understanding, that is, there is a big gray area between traditional illegal acts and legal acts. Sometimes, the behavior of the parties does not conform to or completely conforms to the legal provisions, or there is no legitimate basis in law, but it does not violate the legal provisions. This kind of behavior is called "civil applicable behavior", and its effect is recognized in substantive law. For example, self-help in civil law is such a situation. In some emergencies, it is difficult or too late for the infringed to seek public assistance, but it is difficult to call it infringement to conditionally implement some behavior that restricts the rights of others. The reason is that civil law is a law of rights, and it is the autonomy of the parties. As long as the law does not make mandatory or prohibitive provisions, it is considered that the parties have the right to confirm the content and behavior of their actions. When the parties do this, they are considered to be in line with the original intention of the law. Civil substantive law and civil procedure law cannot be completely separated in many cases. Just as the above summary of the legitimacy of evidence, scholars regard the conformity with the provisions of civil substantive law as an important aspect of the legitimacy of evidence when expounding its legal basis. Since the legality of evidence includes conformity with the substantive law, when judging whether the evidence is legal or not, we should of course consider the legislative guiding ideology followed by the civil substantive law and the basic principles embodied by the law. Although, according to the general academic point of view, the procedural law belongs to the category of public law, which first reflects the will of the state, which is different from the civil law as a private law, we should see that this public law of civil litigation still has its own characteristics compared with the criminal law and the criminal procedure law, which respects the will of the parties to a great extent, especially in the changing contemporary China civil litigation mode, the litigation authority is gradually weakening, while the litigation has a tendency to strengthen, and litigation is guided by the will of the parties in many aspects. At the same time, the civil procedure law itself depends on the provisions of the civil substantive law to a great extent, such as the internal relationship between civil capacity and civil capacity, so there is actually a bridge between them. Therefore, when studying the connotation of evidence legality, we must consider the provisions of civil substantive law. The "proper behavior" in substantive law must get its due position in civil procedure law. The litigant's actions include not only legal actions and illegal actions, but also "appropriate actions in litigation", and the evidence should be divided into legal evidence, illegal evidence and "appropriate evidence". Otherwise, when there is a dispute between the bank and the depositor, why should the video of the bank's business hall (including some supermarkets and even some institutions equipped with video equipment) be used as evidence? Don't depositors have the right to privacy? Which law stipulates that banks have the right to videotape depositors without their consent? When we establish such a standard in procedural law, that is, an act directly conflicts with the mandatory or prohibitive provisions, not only because it cannot find a legal basis, but also can be identified as illegal, and the resulting evidence is called illegal evidence, so that when judging illegal evidence, it will not be biased, and a large number of legal evidence will not be classified as illegal evidence, so as to maximize the enthusiasm of the parties to participate in litigation and maximize the excavation of cases. It is in this sense that the author thinks it may be more appropriate to call the legitimacy of civil litigation evidence "legal appropriateness".
Second, the "law" of the legitimacy of evidence.
After analyzing the connotation of legitimacy, the question that needs further argumentation is: what kind of law should evidence be combined with, that is, what does "law" mean here, including what normative documents have legal effect. This is the premise of judging illegal evidence from legal evidence. Some scholars have discussed this. For example, the second interpretation of legality mentioned above points out that the legality of evidence includes three elements: compliance with the civil evidence law, civil substantive law and civil procedure law. However, the author believes that these discussions are generally necessary for further discussion.
Because of the multi-level status of the legislative subject, the size of the legislative authority and the weight of the controllable matters, the law has different levels. It is generally believed that legal documents (also laws in a broad sense) include laws, regulations and judicial interpretations, and their hierarchical order of effectiveness is the Constitution, the Basic Law, other laws, administrative regulations, judicial interpretations and local regulations. So, what law has been violated by collecting evidence illegally? You mean all the legal documents mentioned above? Does legality only refer to compliance with the law, excluding administrative regulations and judicial interpretations? It has become a controversial topic in judicial practice. Some scholars believe that "breaking the law" mainly refers to violating the Constitution, the Basic Law and other laws, while violating other legal documents is "evidence flaw". Although this view is novel and unique, its defects are obvious, because on the one hand, it does not point out the basis for making this distinction, and it is difficult to answer why violating administrative regulations, judicial interpretations and local regulations is not illegal evidence; On the other hand, there is no statement about the similarities and differences between "defective evidence" and illegal evidence in legal effect. Should it be treated differently or equally in practice? Can defective evidence be corrected in some way?
In order to further explain this problem, it is necessary to learn from the judgment of the validity of civil acts in substantive law, because the legitimacy of evidence also stems from the legal effect of a certain litigation act to a great extent. In the field of civil and commercial trials, the determination of the validity of acts has always been a very complicated issue. The newly promulgated 1999 Contract Law stipulates that contracts that "violate laws and administrative regulations" are invalid, and limits the invalidity of contracts to violations of laws formulated by the National People's Congress and its Standing Committee and administrative regulations promulgated by the State Council, which seems to solve the problem of contract validity that has long plagued civil and commercial trials. But the actual solution to the problem is far from as simple and clear as the law stipulates. In judicial practice, on the one hand, contracts that violate laws and administrative regulations are not necessarily invalid. For example, commercial bank loans violate the provisions of the Commercial Bank Law on loan ratio, which is interpreted by the Supreme Court as "financial supervision and internal supervision" to prevent financial risks and not lead to invalid contracts. On the other hand, contracts that do not violate laws and administrative regulations but violate departmental rules or judicial interpretations are also invalid. If the Supreme Court considers that financial activities violate some management regulations of the People's Bank of China, it shall be deemed invalid. On the other hand, in the field of civil litigation, it presents a different picture: the judgment of whether the evidence is legal is not the ambiguity of the existing legal provisions, but the litigation behavior that violates which level of legal documents is invalid, and there is no provision in the civil procedure law at all. Perhaps because of the historical limitations of legislation, there are regrets, or perhaps legislators deliberately entrust this issue to judges, who will decide according to the situation in trial practice. However, in any case, the omission of legislation and the ambiguity in theory lead to confusion in practice, which makes the identification of illegal evidence have no clear legal boundary, but it is an indisputable fact. The author believes that there are two issues that need to be clarified: First, the "law" violated by illegal evidence should generally refer to all documents with legal effect. The Constitution, the Basic Law and other laws are self-evident, but the key is whether it includes violation of local regulations and judicial interpretations. The author believes that local laws and regulations have local binding force because local people's congresses exercise "legislative discretion" within the scope authorized by the Constitution, basic laws and other laws. Judicial interpretation has legal effect, in fact, the law develops at the same time of interpretation. Therefore, as long as it does not conflict with the Constitution, basic laws and other laws, relevant provisions or interpretations should also be considered in judging whether the evidence is legal or not. Of course, this cannot be generalized, and the specific treatment depends on the comprehensive judgment of the meaning and nature of laws and regulations and interpretations. Second, whether the factual materials identified as illegal evidence are absolutely invalid or not, and whether they have certain admissibility in civil proceedings, we should judge them according to the specific circumstances. The author will talk about this later.
What needs to be pointed out in particular here is whether the people's court can directly determine that an act is illegal according to the constitution or constitutional documents, and whether the resulting evidence is illegal? This involves the applicability of the constitution. In the judicial interpretation discussed in this paper, the Supreme Court held that "it is illegal to record the conversation of the other party without the consent of the other party", but Popo still didn't know what law was violated. It is generally believed that recording others' conversations privately violates the freedom of speech stipulated in the unconstitutional law, infringes on citizens' basic rights (including privacy), and may lead to a situation in which everyone is in a state of fear and anxiety. Whether the court can directly judge whether a civil act is illegal according to the constitutional principle is of great value in trial practice. The effect of the basic rights stipulated in the constitution is generally considered to have normative effect, but whether it is direct or indirect is controversial. The so-called direct effect means that the court can directly apply it when trying civil cases, so that basic rights can be realized in civil cases without passing departmental laws; Indirect effect means that the basic rights clause must be realized through the general clause or uncertain clause of the departmental law. For example, violation of the basic rights clause, violation of public order and good customs can be invalid. There are different views and practices on whether the constitution has the effect of direct application. German courts believe that it can be directly applied. When hearing the "single clause", the German Federal Labor Court held that "this single clause is invalid because it violates the basic norms of the German Constitution ... Some important basic human rights in the Constitution are not only to protect individual freedom and oppose the country, but also the laws and principles of the country's social life, which have direct norms for transactions in private law, and legal acts in private law cannot violate the basic structure of this legal order". The scholars in Taiwan Province Province, represented by Mr. Wang Zejian, think that the indirect effect theory is more appropriate. There are three reasons: (1) The Constitution stipulates that any laws and orders that violate the Constitution are invalid, and there is no explicit stipulation that any legal acts that violate the Constitution are invalid. The legal reservation stipulated by the constitution only applies to the law and does not involve private affairs; (2) The main function of basic rights is to defend against the infringement of people by state actions, not to adjust the legal relationship between private individuals. The application of the principle of proportionality will make legal acts subject to strict examination, which is not conducive to the autonomy of private law; (3) Through the application of general clauses in private law, on the one hand, the value system of constitutional basic rights can be realized, on the other hand, the autonomy of private law can be guaranteed in the legal system and logic, the problems of private law can be solved in a complete system, and the unity of private law order can be maintained. In China's civil and commercial judicial practice, those who violate the constitutional provisions are often invalidated, and the result has also had a negative impact that cannot be ignored when making up for the gap in departmental law. No matter whether the ordinary courts have the power to directly apply the constitutional provisions, whether they have the right to review the violation of the constitution, and how to carry out judicial control over the application of the constitution, the judicial interpretation of private recording by the Supreme Court itself has raised doubts. That is, what laws have been violated, whether private recording violates the freedom of speech protected by the Constitution, and how this constitutional principle should be embodied in the field of civil litigation evidence law is difficult to understand. At the same time, this practice also impacts the logic system of evidence legitimacy in the civil procedure law. Judicial interpretation holds that private recording of evidence by the parties is invalid, but some phenomena more serious than private recording, such as evidence obtained by a court with judicial functions, have no clear opinions on its effectiveness, which is obviously extremely unreasonable. The reason may also be that the application of the constitutional principle has not gone through the basic principles or specific provisions of the Civil Procedure Law, so it has great uncertainty in interpretation, subjectivity and arbitrariness in judicial practice, and exposes some confusion in logic and system. Therefore, it is prudent to directly apply the constitutional principle to judge the legal effect of a litigation act in civil litigation.
Third, the exclusion of illegal evidence.
Illegal evidence is the logical result of the legitimacy of evidence (evidence has three characteristics, so it can't be called illegal, and it is suspected of semantic contradiction. But for the convenience of discussion, it is still called "illegal evidence" here, and the two are inseparable. Meanwhile, the author uses "illegal evidence" and "illegal evidence" as synonyms. In the evidence law of common law countries, there are provisions on the admissibility of evidence, that is, evidence must be allowed by law and can be used to prove the facts to be proved in the case. Generally speaking, there is no such provision in the civil law system, and whether the evidence is admissible or not is up to the judge to decide freely according to his own inner conviction. [9] Because the rule of evidence exclusion has not been formally established in China's civil procedure law, and generally speaking, the provisions on illegal evidence and evidence exclusion in civil procedure are not as strict and complete as those in criminal procedure law. Therefore, under the premise of fully considering the obvious differences in logical starting point and value concept between civil litigation and criminal litigation, it is undoubtedly of great significance to consider and learn from the evidence exclusion rules in criminal procedure law.
Judging from the legislation and judicial practice of criminal procedure in some countries, the provisions and application of the exclusionary rule of illegal evidence embody three characteristics:
First of all, its effectiveness varies with the type of illegal evidence. The confession obtained by illegal means, forced to the suspect by external violence or spirit, or deceived by investigators, is actually in a state of illiberal will, which violates his right to silence, violates the rule of not testifying against himself, and seriously violates the basic human rights of the suspect. Therefore, both the civil law system and the common law system hold a negative attitude towards this confession; For the exclusion of material evidence, different countries have different attitudes in theory and practice because of their different legal and cultural traditions, emphasis on human rights protection and value orientation. Relevant United Nations legal documents also limit the scope of evidence exclusion to verbal evidence, excluding physical evidence and documentary evidence obtained through illegal search and seizure.
Second, the exclusion of illegal material evidence has changed from legal idealism to legal realism, taking into account the protection of criminal suspects' human rights and the fight against crime, the justice of individual cases and the protection of the majority of the society, the absolute legitimacy of evidence and the rational allocation of judicial resources. After 1980s, American federal courts gradually turned to a pragmatic attitude towards illegally collected material evidence. 1984 the federal court revised the exclusionary rule of illegal evidence, allowing two exceptions of "inevitable discovery" and "good faith", thus narrowing the scope of application of the exclusionary rule of evidence. In Britain, as long as the illegally collected and detained material evidence is related to the facts to be proved, in principle, it is not excluded that the discretion is entrusted to the judge, who believes that the pursuit of procedural justice and the protection of the rights of the parties should be limited. In civil law countries, the French criminal procedure law stipulates that judicial personnel should collect evidence in strict accordance with the procedures and methods prescribed by law. However, in judicial practice, except for witnesses obtained by extorting confessions by torture or cheating, illegally collected physical evidence is considered to have evidential effect in principle. Germany adopts the principle of balance in dealing with illegal evidence, that is, except for major crimes, evidence obtained by violating human dignity and personal freedom should be prohibited. Japan's general position on illegally obtained material evidence is that only when there is a "major violation of the law" can material evidence be excluded, so as to maximize the pursuit of substantive truth.
Thirdly, we should gradually adopt a more wise, tolerant and pragmatic attitude towards the admissibility of illegal evidence. In the early days, American courts adopted the principle of exclusion based on the theory of "fruit of poisonous tree", but after the middle of this century, the principles of "independent source" and "dilution" (or weakening causality) were gradually established, so that these evidences can be treated as "poisonous fruit". In Germany and Japan, there are different opinions on this theory, and there is no unified practice in practice.
Compared with criminal proceedings, should civil proceedings be stricter or go further on the road of tolerance and pragmatism when establishing the exclusionary rule of illegal evidence? The author thinks it is necessary to analyze the logical starting point and different value pursuits of evidence exclusion rules in civil and criminal proceedings. First of all, in criminal proceedings, the exclusion of illegal evidence aims at protecting basic human rights and protecting innocent people from being wrongly investigated for criminal responsibility, because those who are investigated for criminal responsibility not only mean that their property is confiscated or even ruined, but more importantly, they often mean that they lose their freedom and even their lives. Procedural justice guarantees substantive justice, and illegal evidence is more likely to make the defendant suffer injustice because it does not have procedural legitimacy. We should not be careless about this. In civil litigation, the private interests of the parties are involved, and the parties have greater freedom of punishment. Relatively speaking, the litigation behavior of the parties, including the collection of evidence, is arbitrary. Secondly, the process of criminal proceedings is a full display of public power. When collecting and fixing evidence, the national reconnaissance organs and public prosecution organs have advanced technical means and rely on the special coercive power of the state. In contrast, the parties to civil cases who bear the burden of proof and the consequences of losing the case are often in a helpless dilemma when collecting evidence. In fact, the essential difference between "collection" and "collection" can be seen only from the literal meaning. In addition, when studying the litigation value of the exclusionary rule of illegal evidence in criminal proceedings, some scholars think that this rule not only has intrinsic value (because of its own virtue, it is also called procedural value, such as the procedural provisions on evidence collection), but also has external value (as a means of pursuing good results, it is also called factual value, which is helpful to the true discovery of cases and maintaining order and security), and it also has "economic litigation value", that is, it establishes the exclusionary rule of illegal evidence. Adopting strict evidence exclusion rules will inevitably lead to a serious waste of judicial resources. Therefore, it is necessary to establish corresponding evidence exclusion rules according to certain standards for different types of evidence in different types of cases. The author thinks that the economic value of the rule should still be considered when establishing the rule of evidence exclusion in civil proceedings, because the strictness of the rule of illegal evidence exclusion will increase the investment of judicial resources. At the same time, the economic value in civil litigation not only refers to judicial resources, but also includes the convenience, economy, possibility and reality of obtaining evidence by the parties. Compared with criminal proceedings, the economic value of civil evidence exclusion rules is in a more prominent position, and the economic value of litigation is sometimes even the internal motivation for the parties to initiate or terminate litigation.
Through the above analysis, it is not difficult for us to draw a conclusion that illegal evidence should be more tolerant than criminal proceedings when establishing evidence exclusion rules in civil proceedings, which is not only the essential attribute of civil proceedings, but also the objective requirement of reality. Due to the restriction of the development level of material civilization and spiritual civilization, as well as the interactive influence of traditional legal culture and structural problems of the rule of law, China's civil litigation environment is not superior to some developed countries, and the reform of civil litigation trial mode has also given the parties a heavier burden of proof. In this case, the rule of evidence exclusion stipulated in the judicial interpretation of the Supreme Court is stricter than that of developed countries, which really goes against the specific national conditions of China.
Fourth, the evidential effect of private recording
There have been different views on the illegality of privately recorded evidence from the theoretical circle to the practical circle. For example, some scholars believe that although one party records and videos privately without the consent of the other party, this method of obtaining evidence is not prohibited by law, so the audio-visual materials obtained cannot be regarded as obtained by illegal means, but can be used as litigation evidence when they have probative force; In addition, in some cases, the parties have no other evidence except audio-visual materials, so the cases cannot be handled and the rights of the parties cannot be properly protected. At the same time, the traditional view of denying the legality of privately recorded evidence is carefully considered, and the difference between its thinking mode and standard is also obvious. Some people think that "without the consent of the other party, the audio-visual materials obtained privately by one party obviously cannot be regarded as legally obtained evidence, which is illegal and cannot be used as litigation evidence". Others think that "the people's court should exclude the recorded materials obtained by one party without the knowledge of the other party". The former requires that the recording must be approved by the other party. In fact, no one wants to deliberately leave evidence against themselves, so it is unrealistic to ask for the consent of the other party. This theory, which is very harsh on the collection of recorded evidence by the parties, can only lead to the exclusion of illegal evidence and actually make the recorded evidence useless. The latter only requires the other party not to object, and is limited to "cheating" to exclude private recording, so it is relatively tolerant. For example, knowing that the other party's phone is recorded, he still insults the other party on the phone, spreads rumors, or admits the fact that he is in debt, and the other party records his conversation. The former believes that without the consent of the speaker, it is "illegal and cannot be used as evidence in litigation"; The latter believes that because it cannot be called "deception", it cannot be excluded from legal evidence.