Source: Fayuan Tea Language
Author: Niu Yanqiang
Audio-visual materials and electronic data, as the two major forms of statutory evidence stipulated in the Civil Procedure Law, are frequently used in modern civil litigation activities. Recording evidence is a type of audio-visual materials or electronic data. Traditional sound recording evidence is recorded in audio tapes, which are audio-visual materials; modern sound recording evidence is mostly recorded by electronic devices such as voice recorders and mobile phones, and stored in electronic media, belonging to electronic data.
During court hearings, it is common for a party or its agent to submit audio-recorded evidence to the court to prove its claim. At this time, how can the other party conduct cross-examination on the recorded evidence? According to Article 106 of the Supreme People's Court's interpretation on the application of the Civil Procedure Law of the People's Republic of China, "Anyone who seriously infringes upon the lawful rights and interests of others and violates the prohibitive provisions of law Evidence formed or obtained by methods that seriously violate public order and good customs shall not be used as the basis for determining the facts of the case. The evidence obtained by the prescribed method cannot be used as the basis for determining the facts.” And Article 70 “If the following evidence presented by one party, if the other party raises an objection but there is no contrary evidence sufficient to refute, the people’s court shall confirm its probative force: … ... (3) Undoubted audio-visual materials or copies of audio-visual materials that are corroborated by other evidence and obtained by lawful means ; , conduct key cross-examination on the following "four major items and ten minor items":
1. Conduct cross-examination around the method of obtaining the recording evidence and the legality of its contents
According to Article 106 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China and Article 68 of the Several Provisions of the Supreme People's Court on Evidence in Civil Procedures, the acquisition of audio-recording evidence must be legal. Specifically, it must meet two requirements: first, it must not (severely) infringe upon the legitimate rights and interests of others; second, it must not violate legal prohibitions or seriously violate public order and good customs. However, in judicial practice, audio recording evidence is mostly obtained through secret recording, and stealing behavior often easily violates the privacy rights of others or violates social ethics, public order and good customs. This requires that the cross-examination of the recording evidence can focus on the following three aspects: first, whether the recording evidence was obtained in the private place of others; second, whether the content of the recording evidence involves the privacy of others; third , whether the acquisition and content of the evidence seriously violated social ethics, public order and good customs, or prohibited provisions of the law. Once the recording evidence (severely) infringes upon the legitimate rights and interests of others, or seriously violates social ethics, public order and good customs, or violates legal prohibitions, it will not be accepted by the court.
2. Carrying out cross-examination around the authenticity of the recording evidence
According to the provisions of Article 70, paragraph 3, of the "Several Provisions of the Supreme People's Court on Evidence in Civil Procedures", the requirement for audio-visual materials is unquestionable, that is, true belief. The authenticity of audio recording evidence includes originality (original) and completeness in form, authenticity and discernibility in content, and the absence of any of the four will lead to defects in the authenticity of audio recording evidence, and may even be unacceptable in court.
These four aspects are also the entry points for cross-examination that the opposing party should pay special attention to:
First of all, according to Article 70, paragraph 3, of the "Several Provisions of the Supreme People's Court on Evidence in Civil Procedures", the audio-visual materials should be submitted in the original or a copy that has been checked against the original. In judicial practice, the opposing party often refuses to recognize the authenticity of the evidence submitted only by copies. The original of the sound recording evidence shall be stored in the carrier automatically or for the first time when the recording is completed. Therefore, the other party may not recognize the authenticity of the audio recording evidence submitted by one party to the court that has been copied or re-engraved in a USB flash drive, CD-ROM or other media.
Second, when a party submits audio-recording evidence, judges often require the parties to submit a written version of the audio-recording evidence at the same time. At this time, the other party should pay special attention to the integrity of the audio recording evidence itself and its consistency with the written version. If the audio recording evidence is formed after editing, splicing and other technical processing, or the text version of the audio recording evidence is not a full reflection of the content of the audio recording but is only a selective excerpt from the party, the audio recording evidence is incomplete. , its authenticity should not be recognized.
Third, the recording evidence should be an objective record of the real intention of the person being recorded, and should not be made under the circumstances of threat, intimidation, or deception. If the recorded content of the audio recording evidence was made under the circumstances that the person being recorded was threatened, intimidated, or deceived, the authenticity of the recorded content of the audio recording evidence should not be recognized.
Fourth, whether the content of the audio recording evidence is clear and identifiable. Most of the recording evidence is obtained through secret recording, and there will be many interference factors during the secret recording process, which may cause the content of the recording to be blurred and inaudible. If the recorded content of the audio recording evidence is indistinct, the authenticity of the recorded content of the audio recording evidence may not be recognized.
3. Carrying out cross-examination around the correlation between the recorded content of the audio recording evidence and the facts to be proved in this case
First of all, see whether the content of the recording is related to this case, if not, it cannot be used as evidence in this case;
Secondly, see whether the content of the audio recording can prove its claim. If the content recorded in the audio recording evidence is related to the case, but cannot prove its claim, its purpose of proof should be denied.
4. Conduct cross-examination around whether the recording evidence is corroborated by other evidence
According to the provisions of Article 70, paragraph 3 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Procedures", if there is audio-recorded evidence of the "three natures" of evidence, the court must have other evidence to support it in order to confirm its probative force. If the parties only have a legal, true and relevant audio recording evidence, and there is no other evidence to corroborate it, the audio recording evidence is an orphan. .