The Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings, which will come into effect on May 1, 2020, adds a new provision on electronic evidence:

Article 14: Electronic data includes the following information and electronic documents:

(1) Information published on web pages, blogs, microblogs, and other online platforms;

(2) Communication information for network application services such as mobile phone text messages, e-mails, instant messaging, and messaging groups;

(3) User registration information, identity authentication information, electronic transaction records, communication records, login logs, and other such information;

(4) electronic files such as documents, pictures, audio, video, digital certificates, and computer programs;

(5) Other information stored, processed, or transmitted in digital form that can prove the facts of the case.

This means that the use of electronic data in civil litigation cases will be further popularized. What we call electronic evidence is actually an electronic data. When the Civil Procedure Law was amended in 2012, there were new provisions, which is obviously a rule born with the development of the times.

With the widespread popularity of e-commerce, it is not uncommon for electronic data to be used as evidence in civil litigation cases. In China's early litigation involving electronic data, the authenticity of the electronic data needs to be notarized before it can be accepted as evidence, otherwise it is likely that the authenticity cannot be determined due to technical reasons and will not be accepted. With the update and iteration of paperless office and big data, more and more electronic evidence is no longer required to be notarized as a premise. Where conditions permit, in-person presentations may also be accepted. Of course, not all of them have a strong technical background and can instantly identify the authenticity of electronic data, and electronic data is easily altered, and electronic evidence must be combined with individual cases to make comprehensive judgments.

How to identify the difference between electronic data and traditional documentary evidence?

In the book Understanding and Application of the New Provisions on Evidence in Civil Procedure, the Supreme People's Court summarized four characteristics of electronic data:

1. Technical dependence

The generation, storage and transmission of electronic data must rely on modern electronic technical equipment and technical means to achieve it.

2. The concealment of storage and transmission

Electronic data is stored on a medium that cannot be directly felt by the senses and can only be viewed by special equipment and technical conditions.

3. Easy to change

All electronic data can always be tampered with, destroyed, and some may be able to leave no trace.

4. Recoverability

Compared with the situation where the original of the traditional documentary evidence is damaged and cannot be restored, electronic data may be repaired.

Does electronic evidence help?

Not necessarily!

In practice, many parties believe that the evidence in hand is conclusive, but the result is often unclear.

Since electronic evidence is evidence, the rules of evidence must also be applied, and only after the court's trial and cross-examination can it be determined to be true can it be admissible, which ultimately affects the outcome of the case. In order to make electronic evidence help the trial of a case, you need to keep the following points in mind (after all, it is not necessary to consult legal professionals in an emergency):

1. Identification of the parties

Whether it is QQ, WeChat, Weibo, B station Up master, Douyin... Any information, when we express an opinion on its content, we must first confirm the subject of the information. You can't put what that person did on this person, that's planting. If you want to claim a claim, you must have an object, and if the target is not clear, the court will not necessarily accept the case.

How to identify the subject identity of the publisher of this information? It's a technical job. Some are easy to do, such as mobile phone number, Alipay all real-name authentication, Weibo big V authentication, electronic signature, you can check it. Some, such as WeChat, although most of them have been real-name authentication, there are still a small number of people who are not bound to their ID cards and cannot verify their identities. If in the chat record, it is naturally good to reflect the cause of the matter through the context, if you can quietly ask for the name, phone number, address, if necessary, ask for a photo of the ID.

2. The integrity of the content

Some people take screenshots of the chat content parts of QQ, WeChat or Taobao Want that they think are important, which is regarded as evidence, and I have to say that they are really big-hearted. Court hearings are not child's play, and logical rigor is a basic requirement. Assuming that one party is at fault, the content of the chat log should be able to reflect the fault, not disagree, argue, or brainless and unrelated. Compared with unilateral reminders, interaction is more effective. Don't forget, our judges have discretion, and when there is ambiguity in the content, especially when people say that you took it out of context, you may regret why you didn't talk more in the first place.

3. Original submission and in-court demonstration

Electronic evidence is also evidence, according to the provisions of the evidence, in addition to providing printed paper chat records, Weibo, and text messages during the trial; Videos and recordings stored on disk still need to submit the original.

What is an original electronic evidence?

The original text message of the mobile phone is the message in the mobile phone; WeChat chat history is the record that can be viewed after opening the WeChat APP instead of a screenshot; Email is the email that can be turned to when you log in to the web page and open your email; The recording has to be the same device you pressed the record button... After submitting the original, it must be demonstrated in court, and the other party can only be used as evidence after cross-examination.

Of course, sometimes if electronic evidence is deliberately deleted or electronic equipment is damaged, although technical recovery can be used to recover the data, after all, there is uncertainty, and losses will occur in case of unrecoverability. At this time, it is a good choice to retain electronic evidence through third-party technical means at the first time.

epilogue

In short, "evidence must be verified to be true before it can be used as a basis for determining facts".

(This article is translated by software translator for reference only.)