Judicial Interpretation of Recording Evidence The original the Supreme People's Court's reply on whether the materials obtained by recording without the consent of the other party can be used as evidence stipulated that the materials obtained by recording without the consent of the other party cannot be used as evidence, and the use is excluded by the rule of illegal evidence exclusion. However, the Supreme People's Court's new rules of evidence in civil procedure redefine the exact meaning of illegal evidence, that is, Article 68 of Several Provisions on Evidence in Civil Procedure stipulates that evidence obtained by infringing upon the legitimate rights and interests of others or violating the prohibitive provisions of the law cannot be used as the basis for determining the facts of a case. As for the recorded evidence, if the holder of the recorded evidence uses the recorded evidence that infringes on the privacy of others or violates the prohibitive provisions of the law, such as recording the privacy of others or eavesdropping on the recorded materials obtained at his work or residence, it will still be excluded from use. However, it proves that the "audio-visual materials supported by other evidence and obtained by legal means, or copies confirmed with audio-visual materials" stipulated in Article 70 of the Rules of Evidence in Civil Procedure is effective. In order to make the recorded evidence become the basis of the judgment, two conditions must be met: first, the acquisition of the recorded evidence must comply with the provisions of the law, and the conversation between the two parties at that time was unrestricted, out of the will, goodwill and necessary conscious freedom to protect the legitimate rights and interests of the parties and find out the true situation of the case; Secondly, the recording technology of recorded evidence is good, the speaker's identity is clear, the content is clear, objective, true and coherent, it has not been edited or forged, and the content has not been changed. There is no doubt that there are other evidences to support it. Skills of Obtaining Recorded Evidence "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings", which came into effect on April 1 2002, stipulates that recorded materials obtained by legal means can be submitted to the court as evidence. However, in reality, the parties often lack the skills of obtaining evidence, which leads to the insufficient probative power of the obtained recordings. Let's discuss the skills of obtaining evidence about recorded evidence. Selection of recording time and place From the point of view of litigation, recording should be carried out as soon as possible. The earlier it is conducted, the more unprepared the object of evidence will be, especially in the initial negotiations, and generally it will not distort the facts. At this time, the recording of the dialogue has the greatest value. However, after several negotiations, the other side often narrates from a favorable angle or adopts a defensive attitude. The choice of location is also very important. We should try to find a quiet and undisturbed place to get better recording effect. Recording equipment should be compact, easy to hide, long recording time and high sound quality. Interviewer, tape recorder or MP3 player with recording function can be used, preferably copied. In addition, telephone recording is generally not as good as live recording. When there are differences in the conversation, the object of evidence may hang up if he doesn't want to continue, but in face-to-face conversation, he can continue even if there are some arguments. Preparation before obtaining evidence: prepare for obtaining evidence and the facts you want the other party to admit. Be prepared for the conversation, including considering the suggested questions and the other party's possible attitude in advance, and how to induce the other party to make a statement. As for whether to make an appointment in advance, it depends on the situation. It is easy to receive a "surprise" effect by going to the door directly, but it is also possible to encounter unexpected situations, such as being rejected by the other party or interrupting the conversation for other reasons. Since the conversation is recorded privately, of course, the most important thing is not to let the object of evidence know that you are recording, so the expression and tone should be natural, and if you know someone, you should pay more attention. (1) explain the time and place during the conversation, clarify the identity of each speaker and the relationship with the facts discussed, and try to use the full name when talking to enhance the relevance and credibility of the recording. (2) Pay attention to confirmation with other evidence, because confirmation with other evidence is a condition for the admissibility of recorded evidence. (3) Do not use threatening tone for business secrets that do not involve personal privacy or have nothing to do with the case, otherwise it may be considered illegal and will not be accepted. (4) Focus on the narration, admission or denial of facts, and don't get entangled in the argument of legal responsibility. (5) Pay attention to controlling the conversation time, ask the facts you want the other party to admit, and go straight to the point. If necessary, you can ask a notary to notarize the recording process. Where evidence is notarized, if necessary, a notarization institution may be asked to notarize the recording process to ensure the legality of the recorded evidence. It is generally believed that all kinds of disputes can be fixed by recording evidence. For example: Zhang He Li, who lives in a residential area in Jinan, Shandong Province, was introduced by her menstrual friend Liu on June 5438+ 10, 2004, and her feelings quickly warmed up. In March of the same year, they began to live together, but they never went through the marriage registration formalities. One day at the beginning of this year, Li told Zhang that her mother was seriously ill and needed hospitalization expenses of 30,000 yuan. She wants to borrow thirty thousand yuan from Zhang. Zhang looked at Li's anxious look, and at the same time, considering that the two had developed into a cohabitation relationship, he borrowed money without asking Li for a loan. In June this year, Zhang He had a conflict. After their quarrel, they dissolved their cohabitation. Zhang Xiang asked her to lend her 30 thousand yuan, but refused to repay it. Zhang sued the court in an angry manner, and the court refused to accept it on the grounds that there was no evidence. In order to obtain evidence, Zhang found Liu, the introducer who introduced himself, and accompanied him to his home, bringing a tape recorder to chat with him on the grounds of wanting to make up. Seeing that he didn't want to make up with himself, Zhang once again asked for the 30,000 yuan he lent him, admitting that he had borrowed 30,000 yuan from Zhang for emergency use, but said that the money had been used as their living expenses and should not be returned to Zhang. Unexpectedly, Zhang recorded all their conversations with a tape recorder. Zhang asked the introducer to write a piece of evidence, and brought this recorded evidence home to sue. In the end, the court ruled that the fact that Li borrowed 30,000 yuan from Zhang was established, and Li paid Zhang 30,000 yuan. Zhang won the case and the recorded evidence played a key role. To this end, the reporter interviewed Zhou of Shandong Dazhengtaihe Law Firm. Lawyer Zhou said that when you collect the evidence you need by secretly recording, you should try to use advanced recording equipment, and try to choose places with less noise interference during the recording process. When recording in secret, we should first show our identity and recording time, so as to prompt the other party to show their identity and enhance the credibility of the evidence. Real estate disputes Qingdao News Network: In April this year, Mr. Ye was optimistic about a house and paid a deposit of 30,000 yuan and a house payment of 6.5438+0.5 million yuan to the real estate agent. Mr. Ye later thought that the content of the purchase contract was unfair, and the real estate agent did not express the normative documents such as the Measures for the Administration of Commercial Housing Sales as required when collecting the deposit. Mr. Ye entrusted an attorney to secretly record the conversation of the sales staff who did not express the relevant legal documents, and then took the real estate agent to court to demand the return of the deposit, advance payment and interest. The Shinan Court held that the agreement signed by the two parties was legal and valid, but the two parties did not sign a house purchase contract. The first instance ruled that the real estate company refunded Mr. Ye's deposit and down payment of 6.5438+0.8 million yuan. The recorded evidence provided by the plaintiff is inadmissible. Judge Che Licheng of the Southern Court introduced that the agreements, letters and other relevant evidence provided by both parties are sufficient to prove the whole process of the case, and the recorded evidence can be rejected as auxiliary evidence. In addition, the evidence quality of lawyer's secret recording is poor, and the details such as recording time and place and identity of both parties are not clear. Compensation for mental loss Wang was introduced to Zhang on 1998, got a marriage certificate on 1 May 999, and got married on1October/October/October of the same year. After the marriage, Wang and Zhang went to work in Beijing together. Wang returned to his hometown in Hebei in May 20001year because of pregnancy, and Zhang still worked in Beijing. In August 2002, Wang learned from fellow villagers that Zhang was living with others in Beijing. After Wang arrived in Beijing, he contacted Zhang's landlord and obtained the evidence that Wang had indeed lived with others for nearly a year through recording. In this way, Wang filed a lawsuit, demanding the dissolution of the marriage relationship with Zhang, and paid monthly child support of RMB 300 yuan and 50,000 yuan for Wang's spiritual comfort. The court ruled that husband and wife should be faithful and respect each other. Zhang lived with others for nearly a year and failed to fulfill his minimum obligations as a husband and father. The state protects the legitimate rights and interests of women and children. Because Zhang resolutely divorced, he decided to dissolve their marriage. Zhang paid 260 yuan alimony every month, and paid Wang 5,000 yuan for spiritual comfort. Disclaimer: The copyright of this WeChat official account article belongs to the original author and original source. 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Legal objectivity:
Article 50 of the Criminal Procedure Law of People's Republic of China (PRC) All materials that can be used to prove the facts of a case are evidence. Evidence includes: (1) physical evidence; (2) Documentary evidence; (3) Testimony of witnesses; (4) the victim's statement; (5) confessions and excuses of criminal suspects and defendants; (6) Appraisal opinions; (7) Records of the inquest, inspection, appraisal, investigation and experiment; (8) Audio-visual materials and electronic data. The evidence must be verified before it can be used as the basis for finalizing the case.