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Chapter 3 Questions and Answers about Marriage and Inheritance (2)
When handling civil cases, the court has the right to inquire the call list of a specific mobile phone or phone according to law. Paragraph 65 of Article 1 of the "Civil Procedure Law": "The people's court has the right to investigate and collect evidence from relevant units and individuals, and relevant units and individuals may not refuse." In case of obligation, the people's court may impose a fine in addition to ordering it to perform the obligation of assistance.It can be seen that the law grants the people's court the power to investigate and collect evidence, which is a mandatory provision that any unit must implement, and the law does not exclude the court from investigating and collecting evidence from communication company call lists. Article 103 of the "Regulations on Evidence" stipulates: "Where one of the following conditions is met, the parties and their agents ad litem may apply to the people's court for investigation and collection of evidence: (17) The evidence collected for investigation shall be preserved by the relevant state departments and the people's court shall (17) materials involving state secrets, commercial secrets, and personal privacy; ([-]) other materials that the parties and their litigation representatives cannot collect on their own due to objective reasons." Mastering the call list of the communication department, The inability of the parties to obtain it (except for the phone owner) falls within the scope of the court’s investigation and evidence collection as stipulated in Article [-] ([-]). Therefore, legally speaking, the court should have the right to investigate the call list, which is also the guarantee for the court to try it according to law.

As for the "telecommunication content" used in Article 66 of the "Telecommunications Regulations", from the point of view of the context, the scope is too wide and it is easy to cause differences. What is the scope of "telecom content"?This is a bone of contention between the court and the telecommunications company, and neither the State Council nor the Ministry of Information Industry has explained it. "Modern Chinese Dictionary" explains "content" as: the essence or meaning contained in things.Apparently, telecom and mobile companies interpret “telecom content” in a literal sense, that is, anything related to telecommunications, including call lists, should be considered “telecom content.”Therefore, it is believed that the court has no right to inquire.The author believes that the legislative purpose of this article is to protect the confidentiality of the specific content of communications. From the perspective of the interpretation of the purpose, the scope of literal interpretation is too large, which does not conform to the original intention of the regulations, and may easily lead to disputes in practice. "Telecom content" should be interpreted in a limited way, and only refers to the content of the call or the content transmitted on the Internet. As for the content stated on the call list: the name of the phone owner, the address of the phone owner, and the phone number, etc., are not within the scope of prohibition. The People's Court has enquiry.

Judging from the rank and effectiveness of the law, the interpretation of the meaning of Article 66 is invalid. The "Civil Procedure Law" was enacted by the National People's Congress and is a basic law, while the "Telecommunications Regulations" was enacted by the State Council, which is an administrative regulation and a subordinate law, and its effect is not as good as that of the Civil Procedure Law.Even according to the literal interpretation of Article 66 made by mobile and telecommunications companies, the people's courts are excluded, which obviously contradicts the Civil Procedure Law. According to the Legislative Law, when there is a conflict between normative documents, the higher-level law should be applied.Therefore, the court has the right to investigate and collect evidence from the telecommunications department, and the telecommunications department must cooperate.

The content stated in the call list often plays a major role in the trial and enforcement of cases by the people's courts.When telephones and mobile phones first appeared, only a few people owned them, and they were still luxury items for ordinary people.With the rapid development of China's economy, they have "flyed into the homes of ordinary people", lost their status symbols, and mainly left communication value.Therefore, from the owner's name, address, and telephone number of the other party on the call list, clues to the parties and witnesses can often be effectively found.For example, in the above-mentioned divorce case, when the defendant only has the name of the third party and cannot provide an accurate address, it is entirely possible to find the third party’s phone number through the plaintiff’s mobile phone call list, and then print the third party’s phone list, which is very easy. Look up her home address and thus find the third party.Another example is that in some execution cases, the person subject to execution flees every day, and it is difficult to find a trace.Through the telephone list of friends or relatives who have close contacts with them, it is often possible to find the person subject to enforcement and his property, and receive miraculous results.With the rapid development of modern communication, people in today's society rely more and more on communication tools such as telephones, mobile phones, and the Internet.If the people's court cannot check the call list during the trial and enforcement process, it is very likely to become "blind" or "deaf", which will seriously affect the further development of judicial work.

The court's access to the call list of a particular mobile phone or phone will not affect the freedom and privacy of communication.The civil investigative power of the people's courts is clearly different from the criminal investigation power of the public security and procuratorial organs. The criminal investigation power of the public security (procuratorial) organs includes the power to seize, confiscate, and monitor phone calls, and restricts the freedom of communication of citizens (legal persons) and The right to criminal investigation, such as the secret of correspondence, directly affects the freedom and secrecy of correspondence of citizens, so strict restrictions are indeed necessary.The civil investigation power of the people's court is only to investigate and understand the business archives registered with the party's telephone number, address, and telephone usage from the communication department. It does not check the content of telecommunications or monitor calls. Correspondence secret.At the same time, after the case is filed, the people's court conducts investigation and evidence collection according to the application of the other party and in accordance with the "Civil Procedure Law" and "Evidence Regulations", which is not arbitrary.

tips

This case essentially involves the impact of the people's court's investigation and evidence collection on the privacy of individuals during litigation.The right to privacy refers to a kind of personality right that citizens enjoy to enjoy the peace of private life and private information to be protected in accordance with the law, and not to be illegally intruded, known, collected, utilized and disclosed by others.The right to privacy can only be restricted in cases specifically provided for by law.

Therefore, for materials involving privacy, including state secrets, commercial secrets, and personal privacy, in accordance with Article 120 of the Civil Procedure Law, when a people's court hears a civil case, unless it involves state secrets, personal privacy or otherwise stipulated by law, It should be done publicly.Divorce cases and cases involving commercial secrets may be heard in private if the parties request that the trial be held in private.Article 66 stipulates: "Evidence shall be presented in court and cross-examined by the parties. Evidence involving state secrets, commercial secrets, and personal privacy shall be kept confidential, and if it is necessary to be presented in court, it shall not be presented in open court sessions." According to the above The law stipulates that the three types of evidence that are not presented during closed trials or public hearings should not be written in legal documents, and the parties cannot provide the above three types of evidence to the people's court.When it is necessary to produce evidence, the application can only be made to the court receiving the lawsuit, and the people's court will investigate and collect evidence according to its authority.

5. In a divorce case, how to prove that one party made a loan to avoid property division?
In the divorce proceedings between Wang and Chen, in order to avoid the division of property, Chen remitted a sum of money remitted to his account by his relatives through the bank, and asked his relatives to write a loan certificate. The court relied on this as the only "evidence" , to award part of the community property as repayment.Wang believes that according to Article 1998 of the Supreme People's Court's "Several Provisions Concerning the Reform of Civil Economic Judgment Methods" [Fa Shi (14) No. 28]: the following evidence cannot be used alone as the basis for determining the facts of the case, and the second paragraph " A witness who has a kinship relationship with one of the parties issued a testimony in favor of the party” and proposed that this evidence should not be accepted, but Wang’s opinion was not accepted by the court during the trial.Chen believes that this evidence proves the behavior of the borrower himself, not the testimony of the party concerned as a relative.The above terms do not apply.

So, what legal provisions apply in this case?
Analysis according to law
Not all the evidence presented by the parties can be used as the basis for the judge to decide the case. The objectivity, relevance and legality of the evidence are three important attributes of the evidence.Among them, objectivity means that the content reflected by the evidence must be an objectively existing fact.Evidence must be objective, otherwise it is not evidence.Objectivity of evidence has several implications:
First, the objectivity of evidence means that the content reflected in the evidence must be a fact that actually happened, and must be a reflection of an objectively existing fact, not a hypothesis or fiction, let alone a fabrication or fabrication of facts.This characteristic of evidence is independent of human will and does not depend on human will.

Second, the objectivity of evidence means that the content of the evidence itself must be objective.The objectivity of evidence not only requires the evidence to be a reflection of objective facts, but also requires that the content of the evidence itself must conform to the actual situation that has occurred objectively, such as the meaning of documentary evidence conforming to objective facts, and the testimony of witnesses being objective.

Third, the objectivity of the evidence makes the determination of the facts of the case reliable and convincing.

In the development history of evidence, there have been oracle evidence system, legal evidence system and so on.Although these methods can recognize the facts of the case to a certain extent, they are an external method independent of the facts of the case. Compared with the determination of the facts of the case through evidence, they are subjective, arbitrary and one-sided.Evidence is a method of proving facts with facts. Compared with other methods, it is the most reliable and convincing for determining the facts of a case.The establishment of this method is not a castle in the air. Its theoretical basis comes from three aspects: that is, any fact that has happened will leave various traces in the objective nature or human spiritual world, which is caused by the development and changes of objective things. There is an objective connection between such traces and the facts of the case; human beings can discover and recognize the objective connection between such traces and the facts of the case through the power of subjective spirit or logic. Unknown facts can be deduced from known facts.Evidence is a known fact, and the facts of a case are unknown facts. Using the power of logic to deduce unknown facts based on known facts provides a solid foundation for the determination of case facts. Therefore, the method of knowing the facts of a case through evidence is the most reliable .

Therefore, judging from this case, Wang can question the objectivity of the IOU in Chen's hand. The angle of questioning can be based on Article 70 of my country's "Civil Procedure Law". Duty to testify in court.Therefore, in our country, people other than the parties concerned, all units or individuals who know the circumstances of the case are witnesses, and their testimony is the testimony of witnesses.The relatives of the other party in this case are witnesses other than the parties. This is certain, and their words are witness testimony in this case. The content of Article 28 of the Regulations.

In other words, the relative's testimony is to prove the borrower's own behavior; but for this case, it is also the testimony of a witness other than the parties to the case.As for the IOU, Article 69 of the "Evidence Regulations" also stipulates that it cannot be used alone as a basis for concluding a case.

tips

Pay attention to the authenticity of debts in divorce cases.The settlement of debts at the time of divorce includes: (1) the settlement of joint debts; (2) the settlement of personal debts. Article 41 of the "Marriage Law" stipulates that at the time of divorce, the debts originally borne by the husband and wife should be paid off together.

The so-called "debts borne by husband and wife living together" refer to the debts incurred by the husband and wife for living together, fulfilling the obligations of raising and supporting, and for the needs of production and management during the duration of the marriage relationship.Debts incurred in living together shall be paid off with the joint property of the husband and wife.The debts incurred during the continuation of the husband-wife relationship shall be paid off with the common property. When the joint property is divided in divorce, the joint debt shall be paid off first, and the balance after the settlement shall be divided by the husband and wife through negotiation. When negotiating to determine the repayment responsibility, if the negotiation fails to divide or negotiate to determine the repayment responsibility, the people's court may be appealed for judgment.

Paragraph 19 of Article 3 of the "Marriage Law" also stipulates: "The property acquired by the husband and wife during the existence of the marriage relationship shall be owned by each of them. property settlement."

6. Who should issue a certificate of marital status for the parties?

In 1974, Zhang went through the marriage registration procedures at the civil affairs department of a (rural) commune where he was from.Later, the whole family moved to another village after 1987.The marriage certificate has long been lost due to long time and relocation, etc. Now, the marriage certificate is required for the purchase of house mortgages, children’s schooling and other affairs. ) to handle.Zhang issued a certificate at the grassroots village committee (former brigade) where he was originally from, but was rejected when he went to the local civil affairs department to apply for a husband and wife relationship certificate.The reason was that the marriage registration files at that time no longer existed (could not be found), so they simply shirked their responsibilities and refused to accept the case.Zhang's current situation is that he has been married for decades but can't find anyone to prove whether it is legal.

Analysis according to law
The main responsibility of the marriage registration authority is to handle marriage and divorce registration, but issuing marriage relationship certificates is also one of the responsibilities of the marriage registration authority.Therefore, the civil affairs department has the duty to issue a certificate for the person who applies for a marriage certificate.

Zhang can take the marriage status certificate issued by the original village committee to the civil affairs department to apply for a marriage relationship certificate, and the civil affairs department should issue it according to law after investigating the files. If the files are indeed lost, they should also conduct corresponding investigations and then issue a certificate .It is untenable to refuse to issue it on the grounds that the file is lost.If the civil affairs department still refuses to issue it, it can apply for administrative reconsideration to the higher authority on the grounds of its "inaction", or directly bring an administrative lawsuit to the court.

Article 17 of the "Regulations on Marriage Registration" stipulates: "Where the marriage certificate or divorce certificate is lost or damaged, the parties may apply to the original marriage registration authority or the marriage registration authority where one party's permanent residence is located with the household registration booklet and ID card to apply for a replacement. Marriage The registration authority shall check and verify the marriage registration files of the parties, and if it is confirmed to be true, it shall reissue the marriage certificate and divorce certificate for the parties.”

Article 6 of the "Administrative Reconsideration Law" stipulates: "In any of the following circumstances, citizens, legal persons or other organizations may apply for administrative reconsideration in accordance with this law:... , qualification certificate, qualification certificate and other certificates, or apply for approval by the administrative organ, registration related matters, and the administrative organ fails to handle it according to law..."

Article 11 of the "Administrative Litigation Law" stipulates: "The people's court accepts the lawsuit brought by citizens, legal persons and other organizations against the following specific administrative acts: ... ([-]) The administrative organ considers that it meets the statutory requirements and applies for the issuance of a permit and license by the administrative organ. Refuse to issue or give no reply; ([-]) Apply to the administrative agency to perform the statutory duties of protecting personal rights and property rights, but the administrative agency refuses to perform or does not give a reply;..."

tips

From birth to death, people need multiple documents to prove their identity. If these documents are not kept properly, they will often cause a lot of trouble for themselves, and they will also fall into a situation of lack of sufficient evidence when encountering a lawsuit, and even lose the lawsuit.Therefore, everyone should pay attention to keeping all kinds of evidence materials in daily life, in case of emergency.

7. Can mobile phone call records be used as divorce evidence?

Zhou (male) and Huang (female) were married in free love, and Zhou's family was dissatisfied with Huang for a long time and instigated Zhou and Huang to divorce.After the court ruled that the divorce should not be granted, Zhou sued for divorce again in May 2006.

During the court investigation, Huang claimed that the relationship had not broken down, and submitted to the court the recording of the mobile phone call between the plaintiff and the defendant on March 2006, 3.The court played the recording of the mobile phone call in court, and the content was lingering. The plaintiff Zhou expressed his "missing" and "love" the defendant Huang many times during the call, and said that the two broke up "very sad".Huang believed that Zhou's request for divorce was interference by his family.The court submitted the conversation between the plaintiff and the defendant to the plaintiff for cross-examination. The plaintiff had no objection, and the court affirmed it and made a judgment that the plaintiff Zhou and the defendant Huang were not allowed to divorce.After the verdict was pronounced, both the plaintiff and the defendant obeyed the verdict.

Analysis according to law
The Fafu (1995) No. 2 issued by the Supreme People's Court, "Reply on the Issue of Whether Materials Obtained by Recording Without the Consent of the Other Party Can Be Used as Evidence" (hereinafter referred to as the "Reply") established for the first time that illegal evidence in civil proceedings in our country Exclusion rules and judgment criteria.The "Approval" pointed out: "Evidence must be obtained legally, and only evidence obtained through legal channels can be used as the basis for a verdict. It is illegal to record the conversation without the consent of the other party. cannot be used as evidence."

In a positive sense, the "Reply" clearly confirms that the acquisition of evidence should be legal, which is a full affirmation of the legality of evidence, and it is also the first time to reveal the specific connotation of the legality of evidence from an operational level. It is of great significance to collect evidence, protect the basic rights of citizens, and maintain social trust.The legality of evidence in the general sense in our country is usually viewed as evidence capacity, and whether evidence materials have evidence capacity mainly depends on the provisions of the law. Only when it is legally allowed to be evidence can certain evidence materials have legal probative force .The "Reply" is not a simple restriction on the qualification of evidence (evidence capacity), but establishes the admissibility rule in the evidence law of our country in a negative sense, that is, the rule of exclusion of illegal evidence.

(End of this chapter)