Xie Youjun works in the court and has been handling cases. To your question, the first thing I want to answer is that mobile phone recordings can be used as evidence, but not all mobile phone recordings can be accepted as evidence by judges because they must meet the requirements of evidence. Therefore, whether the mobile phone recording can finally be adopted depends on whether the recording is legally obtained, whether it is related to the case and whether it is objective. Combined with the experience of handling cases, I will tell you something recorded by mobile phones in easy-to-understand words.
A recording that cannot be used as evidence
1 Evidence that forces the other party to make a statement against his will cannot be used as evidence. In other words, the evidence we get must be the true expression of the other party, without coercion. If it is in a coercive environment, such as under the control of force, such as under the threat of words and so on. In such an environment, even if the mobile phone recording is obtained, it will not be recognized, but may be subject to criminal sanctions for allegedly breaking the law.
2. The collection method of mobile phone recording violates the law or public morality and cannot be used as evidence. That is to say, the mobile phone recording technology you obtained is immoral, which is definitely not evidence. For example, it is illegal for you to put a recording device under someone else's bed to eavesdrop. For example, if you follow a person, it is not allowed to take candid photos.
The edited, tampered and grafted mobile phone recordings cannot be used as evidence. Some people think they are smart, so they edit out what is bad for them and connect what is good for them. They think they are perfect, but they are actually very clever, because this recording will definitely need to be cross-examined in court, and your means will definitely be seen through. The courts in China have also carefully examined this evidence and will not accept it at all.
The recording in question cannot be used as evidence. This is the most common situation in reality where recording is not used. Because the recording as electronic evidence has poor legal probative power, the court will be cautious about the adoption of evidence, and often the content in the evidence submitted by the parties is subjective, sometimes it is difficult to get effective clues from the recording or doubt the authenticity of the event without other evidence, which often leads to the recording being unable to be used as evidence.
What should be paid attention to when recording evidence
1, illegally recorded evidence can be used as evidence. Even if the other party thinks that you recorded illegally, as long as it does not violate the law, public order and good customs, the illegally recorded evidence can be used as long as it is the evidence element of the other party, and even if the other party defends on the grounds of illegally recorded evidence, it will not be supported.
Keep the original carrier of the recording as soon as possible. If the original carrier can be provided, if it is difficult to provide it, a burned version can be provided, but the original carrier of the evidence must be retained. Because the evidence you submit is likely to be questioned and tampered with by the other party, it is necessary to identify it at this time, and the identification needs to identify the original carrier. There is no problem with losing or submitting.
3. The recorded evidence must be clear and unambiguous. When you are recording, the key questions about your case must be reflected in the recording, otherwise it will be recorded in vain. The recording is vague and specious, and it is easy to be refuted by the other party. At this time, the judge in charge is neutral, and he speaks according to the evidence. When your recording can't explain anything, it won't be adopted.
You need other evidence to prove the evidence chain, because the role of recorded evidence is very small, and there is a great risk of losing the case without other evidence to testify. So you need to search other evidence and prove the facts of your case together with the recorded evidence, so that you can hide.
Can the recording be used as evidence? Article 63 of the Civil Procedure Law makes it clear that evidence includes statements of the parties, documentary evidence, physical evidence, witness testimony, audio-visual materials, etc. And mobile phone recording is one of the audio-visual materials.
Article 68 of the Supreme People's Court's "Several Provisions on Evidence in Civil Proceedings" stipulates: "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 the case."
According to the regulations, the evidence must be legally obtained, and the evidence provided by the parties must be verified before it can be used as the basis for ascertaining the facts.
Therefore, even the information obtained by recording the conversation without the consent of the other party can be used as evidence unless it is obtained by infringing on the legitimate rights and interests of others or violating the prohibitive provisions of the law.
What should I pay attention to when collecting recorded evidence? 1. The recorded evidence presented by the parties is true.
The authenticity of recorded evidence lies in its originality and coherence, unedited or forged, closely linked before and after, and the content remains unchanged.
2. Record the legality of the evidence.
Evidence that is not obtained by infringing upon the legitimate rights and interests of others or violating the prohibitive provisions of the law.
3. The other party agrees with the recorded data, or although there is not enough evidence to prove it, the reasons for rebuttal are untenable.
According to Article 70 of the Supreme People's Court's Provisions on Evidence in Civil Proceedings, if one party raises an objection but there is no evidence to the contrary, the people's court shall confirm the probative force of audio-visual materials supported by other evidence and obtained by legal means, or copies confirmed with audio-visual materials.
Before answering this question, pay attention to distinguish the following two questions:
(1) Can mobile phone recording be used as evidence?
(2) In litigation activities, what kind of mobile phone recording can be recognized as judgment evidence?
According to the description of the question, the questioner should be puzzled by the second question. The specific analysis of the above problems is as follows:
1. Recorded evidence is one of the legal types of evidence stipulated in China, and mobile phone recording can naturally be used as a kind of evidence. However, in order to finally become the evidence recognized by the judgment, the mobile phone recording must conform to the three characteristics of the evidence (objectivity, relevance and legality).
2. Even if the mobile phone recording is evidence, it is not all valid. When recording with a mobile phone, the recording process shall not infringe upon the legitimate rights and interests of the state, society or others, otherwise the recording will be invalid because it violates the legality of the evidence.
3, if the recording without the consent of the other party, but as long as it does not violate the legitimate rights and interests of others, does not violate the prohibition of the law, the recording can be provided as evidence to the court.
4. The following points should be paid attention to if the mobile phone recording wants to become the judgment evidence in the litigation activities:
(1) Ensure that the acquisition of mobile phone recording evidence complies with the law, and that the two recording parties are not subject to personal, freedom or other restrictions when talking;
(2) In mobile phone recording, the identity of the speaker can be clearly defined, the conversation content is clear, and the conversation is objective, true and coherent;
(3) Ensure that the mobile phone recording has not been edited or forged;
(4) Provide other evidence as far as possible to confirm the mobile phone recording.
Recording can be regarded as evidence, which belongs to the category of evidence under audio-visual materials in evidence. Since the recording can be used as evidence, the mobile phone recording has the same effect.
However, although the recording in the mobile phone can be used as evidence, whether this evidence can be recognized by law and adopted by the judge is the fundamental purpose of recording and preserving the evidence. Below, let's analyze what kind of recorded evidence it is.
The recording in 0 1 mobile phone must be legal if it is to be used as evidence. Any evidence that ultimately supports the claims of the parties must be collected in a legal form and conform to the law.
Mobile phone recording itself has satisfied the legal form of evidence, which is also a kind of audio-visual materials. As long as it is obtained in a legal form, it can be used as effective evidence in litigation.
Recording with a mobile phone cannot infringe upon the legitimate rights and interests of others, violate social order and good customs. For example, if you suspect that your husband has a lover, you can use your mobile phone to record evidence in your hidden place, which is legal. However, if the evidence is placed in a third person's home, it will be invalid because of invasion of privacy and residential privacy.
Grasp the principle in general, do not invade the privacy of others, do not record under the threat of inducement, and the recording is basically legal.
The recording in the mobile phone must be true if it is to be used as evidence. Among the three characteristics of evidence, the authenticity of evidence is a very important requirement. The evidence as the basis for proving matters must be true and complete.
The authenticity of evidence means that the recorded evidence should be true, not false, not spliced at will, and not made out of nothing.
The integrity of evidence, if the recorded evidence is complete and unified, can not be edited and cut, so that the evidence can restore the whole story.
At the same time, if the recorded evidence is useful, it also needs the process of identifying the identity characteristics and main facts of the parties from the recording.
When the recording in the mobile phone is used as evidence, it must be relevant. No matter whether your evidence is legal or not and whether the source is true and reliable, it is ultimately used to prove your claim, so it must be related to the case.
For example, knowing the defendant's name and phone number and recent activities through mobile phone recording, the whole recording is a trivial matter of life, but it wants to prove the fact that he owes you money, which is irrelevant.
If you want to prove poor money by recording, you should include these contents: "Are you Wang Xiaoer? Yes, I'm Li Xiaosan. Look at the 654.38 million yen you lent me on May 28th, 2005. I am useless now. Can I have it back? " "Oh, that money is not that I don't pay it back, but that I really have no money."
This can at least prove the fact of borrowing money and interrupt the limitation of action.
Conclusion With the convenience of mobile phone, it is very convenient to use mobile phone to collect evidence. I would like to remind you that some software can mark the collection time on these contents, whether it is photos, videos or recordings, which is also a very useful proof of evidence time.
We should cultivate evidence consciousness at ordinary times. For some cases where recording evidence needs to be collected, we can first list the recording outline on paper, which can completely cover all the facts in the call process, obtain real, legal and relevant recording evidence, and make contributions to the lawsuit.
The judge can only bend the law and tell you that mobile phone recordings cannot be used as evidence. As long as they are unedited recordings, they must be used as evidence. Now the technology is so advanced that judges can't recognize it, so they can do speech recognition.
Telephone recording belongs to "audio-visual materials", which is one of the eight types of evidence stipulated in China's civil procedure law, that is, audio, moving images and graphics stored in tapes, video tapes, film or computer-related equipment to prove the facts of the case, so it can certainly be used as evidence.
However, evidence and probative force are not the same legal concept. Evidence is a qualification, probative force is a result and function, and evidence does not necessarily prove the purpose to be proved. All evidence, including telephone recording, should have the "three characteristics" of evidence, namely authenticity, legality and relevance.
To have probative force, telephone recording evidence must meet the following conditions:
First, to be true, the telephone recording must be on the original carrier without editing. If the original telephone recording has been deleted, a copy can be provided according to the Provisions of the Supreme People's Court on Evidence in Civil Proceedings, but the evidence collection should be explained in the investigation record. In addition, the recording must be complete, don't edit it, and don't hide what you don't want to show.
Second, the content of the telephone recording should be related to this case, which can reflect the corresponding facts of this case, but not irrelevant to this case. In the recording, it is necessary to clearly restore the facts and prove the subject identity of the other party and the reason of the matter. For example, the opposite party borrows money from you, but the other party doesn't give you an iou. In this case, you can call the other party to record. The recording will show the name and amount of the other party, whether the loan method is cash or transfer, as well as the service period and interest.
Third, telephone recordings should be obtained through legal channels, not in the form of infringing on the privacy of others or the legitimate rights and interests of third parties. This is not to say that you can't secretly record, but that secretly recording can't infringe on the legitimate rights and interests of others.
In the process of conversation, you should also pay attention to your tone. Your attitude and tone must be kind, and you can't force or threaten each other. You must express your true meaning.
In addition, the court will not recognize the recording made by means of burglary, kidnapping or coercion as evidence obtained by infringing on the legitimate rights and interests of others or violating the prohibitive provisions of the law.
The recording in the mobile phone can be used as evidence, but the question is whether it can be accepted. There is a certain difference in the probative power between telephone recording and mobile phone live recording.
The exclusion of mobile phone recording from illegal evidence to limited exclusion is based on the evidence law. We regard everything that can prove the facts of the case as evidence. Therefore, from this concept, everything can be used as evidence, but whether it can be used as evidence to determine the facts of legal judgments requires two standards: probative ability and probative force. The former can be accepted as evidence of a case, and the latter refers to the role of proving the facts of the case.
The Supreme Law 1995 approved the exclusion of illegal evidence, arguing that evidence that infringes on others' privacy cannot be used as evidence in a case. Of course, after some provisions of 200 1 Civil Evidence were revised, this provision was cancelled.
In order to make the recorded materials appear as effective evidence in court trials, the ways and means of obtaining them must meet the requirements of Several Provisions on Civil Evidence.
In the process of recording collection, it must be carried out in a reasonable place, and it is forbidden to eavesdrop on others' privacy and invade others' privacy. The recorded data thus obtained will be excluded due to illegal means.
The other party's speech must be the expression of the true meaning at that time, without any coercion or threat.
The recorded material content needs to be true and coherent, and cannot be edited. They need to be presented in the original state, the sound quality of the dialogue needs to be clear, and the part of the case to be confirmed needs to be accurately and completely described.
Notes on telephone recording and mobile phone recording as evidence Telephone recording:
At present, in judicial practice, telephone recording can generally be used, which generally needs to be combined with identity information to prove the other party's telephone number (a very simple and small means). However, it should be noted that the telephone recording needs to be recorded by the calling mobile phone itself, which can be found directly from the mobile phone, and the original cannot be deleted. If there is only a copy, as long as there is no original, the other party will not admit it, and this evidence will be abolished.
Recording on a mobile phone:
The defect of mobile phone recording is that the recording can't match a specific person. The general defense is that the identity of the speaker cannot be verified and the court cannot confirm who the speaker is. So once the other party denies it, the possibility of this recording being adopted is very small.
Nanjing Yang Chao lawyer office
According to the law of our country, the recording can be used as evidence, but the original attribute of the recording must be guaranteed and it is not allowed to be edited. Can be used as evidence.
Sure! I just recorded it on my mobile phone, and the judge confirmed that there is interest on borrowing money! The other court refused to admit to borrowing money to pay interest and submitted a telephone recording to the judge. The judge approved it and the verdict came down!
This topic is incorrect. According to the law of our country, the recording can be used as evidence, but the original attribute of the recording must be guaranteed and it is not allowed to be edited. Can be used as evidence. Whether the court accepts the letter or not can be cross-examined by the court. Therefore, the audio and video recordings of mobile phones can be submitted to the court as evidence for cross-examination.