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Chapter 34 Questions and Answers on Personal Injury Compensation Disputes (16)
In this case, generally speaking, it is meaningless to examine the content of the text message, because the party concerned has already denied that he is the sender and sender of the text message, and in essence, it can be said that he has denied its content, unless there are other circumstances.It may happen in practice: the owner of the mobile phone lends the mobile phone to others or sends text messages to others after it is stolen, and the other party does not recognize that the mobile phone number belongs to him, etc.The former may contest this on the basis of other evidence, or may presume it on the basis of certain known facts.The latter is currently not all mobile phone numbers are subject to the real-name system, and it is impossible to identify the identity of some numbers, which makes it difficult to identify evidence of text messages.During the review, although it can also be presumed based on the support of other evidence and the presumption rules, it may encounter great difficulties in verification in actual operation.Therefore, unless a complete real-name system is implemented for mobile phone numbers in the future, it will bring great judicial convenience to the determination of the source of evidence.

2. There is no objection to the sender and the sender, but there is an objection to the content of the text message.

After confirming the receipt and sending of the mail^, its content should be reviewed. The reason for this is that the short message is not as easy to identify as other evidence.If the content of general documentary evidence is changed, it can basically be identified. Even if it is difficult for ordinary people to identify, the results of professional appraisal can basically be guaranteed.Not so for SMS.my country's current judicial appraisal has not included new types of evidence such as E-mail and mobile phone text messages into the scope of appraisal.

According to the types of mobile phones on the market, some mobile phones have the functions of re-editing and modifying mobile phone text messages and leaving no "clues".What's more serious is that because the signal of the mobile phone short message and the function of receiving information are all in the SIM card of the mobile phone, that is to say, the SIM card sends and receives information, and the mobile phone only plays the role of a medium and a carrier.The recipient can completely modify the received text message in an editable mobile phone without any trace after modification, and then put the SIM card into a mobile phone that does not have this function, as a possible modification for the text message sexual defense.This makes it difficult to identify the authenticity of its text messages.

In addition, SMS service providers or operators only record the sending and receiving time of each SMS and the mobile phone number of the sender and sender, but generally do not record its content (although they have the ability to record the content of SMS), so this may cause evidence against it. The fact that authenticity may not be ascertained at all.When reviewing its content, some scholars believe that it is very unrealistic or even impossible for the judge to insist that the plaintiff must prove that the mobile phone text message has not been altered in any way. Second best."Judging from the experience of foreign countries, the usual practice is not to solve the problem by means of direct authentication—appraisal, but by resorting to indirect authentication methods—presumption and self-recognition.

Therefore, we believe that presumption, as the first criterion for the adoption of electronic evidence, can be used based on the internal relationship and connection between the facts of the case, as well as reasonable general logical relationships when reviewing the credibility and reliability of text message evidence.

tips

Mobile phone text messages have their inherent perishability: first, text messages are easily deleted by mistake due to improper operation by the owner.Second, it may be maliciously deleted by interested parties, resulting in the destruction of evidence.Third, the storage capacity of the mobile phone is too small, and it may be automatically deleted due to receiving too many short messages.Fourth, the loss of the mobile phone and damage to the SIM card and other reasons that can cause it to be lost.

Therefore, the preservation of mobile phone short messages has its special necessity. Article 74 of the "Civil Procedure Law" stipulates that the court may adopt evidence preservation measures based on the application of the parties, and the parties may also apply to the notary office to preserve the evidence in the lawsuit outside the lawsuit.For the preservation of mobile phone text messages, it can be converted into written form.According to the provisions of Article 24 of the "Regulations on Evidence", the method of inquest and record making can be adopted to fix the content of his short message.In addition, it can also play a very good preservation effect through notarization. Article 67 of the "Civil Procedure Law" stipulates: "The legal acts, legal facts and documents that have been notarized by legal procedures shall be used by the people's court as the basis for determining the facts. Unless there is evidence to the contrary that is sufficient to overturn the notarization." The legal force of evidence preservation notarization, and, from the perspective of economic interests, sometimes, applying for litigation preservation after filing a lawsuit will often delay the best time for evidence collection.Electronic information such as text messages is difficult to effectively save, so it is especially suitable for notarization.

67. Are e-mails used as evidence?

In September 2006, a limited company hired Fang as the general manager of the company.At work, Fang and Hou, a senior management member of the company, disagreed and had conflicts. In November, the company's board of directors decided to dismiss Fang.Fang believed that Hou was responsible for it. From November 9, 11 to the first ten days of December of the same year, Fang sent a large amount of derogatory and privacy-disclosing information to Hou himself in the form of e-mail several times.Later, Hou sued Fang to the court, demanding that the other party restore his reputation, eliminate the influence, and pay 2006 yuan for mental damage relief.

Analysis according to law
E-mail (E-mail) is information such as inputting files, pictures, or sounds from a terminal through a network such as Internet or Intranet, and then transmitting information to the terminal at the other end through a mail server.E-mail is currently the most frequently used communication method in the virtual network space.With the rapid development of the Internet, once a dispute arises in this form of e-mail communication, whether it can become evidence, what are the conditions for becoming evidence, and how to obtain evidence in litigation are issues that need to be resolved urgently.

The biggest difference between e-mail and traditional communication methods is that it converts what people want to express into digital signals, and presents them on the computer screen of the other party through network transmission, so there is no "authentic trace" of each other, and at best it is only on your own computer. printouts, and once the sender deletes the files from their "outbox" and "recycle bin", they disappear without a trace, and the characteristics of computer printouts, which are easy to forge or delete, cannot but make people Doubts have been added, so the conditions for e-mails to become evidence should be relatively strict.

When examining the evidentiary force of e-mails, it is first necessary to have an understanding of the characteristics of e-mails.The biggest feature of e-mail is that each e-mail box corresponds to a unique registered user (it may be an individual or some people), and its user name, account name, and password are all unique.As long as anyone has mastered the user name and password of a registered user, he can use any computer connected to the Internet to send, receive and delete e-mails on the e-mail box corresponding to the user name.Another feature of e-mail is the complexity of the transmission process, especially cross-border e-mails have to go through multiple servers before reaching the target server.In practice, disputes directly caused by e-mails are rare, and they usually appear in the form of evidence. The cross-examination of both parties believes that it can be used as evidence. In such cases, the form of evidence by email is not important, because the party’s acknowledgment statement itself can be used as evidence, and this acknowledgment statement can be confirmed by email. It is confirmed by the content, so it should be recognized by the court.

tips

For e-mail evidence, before the lawsuit, the parties can ask the notary office to issue a notarized document, and can also take the witness of the lawyer, the authentication of the diplomatic agency, the authentication of the industrial and commercial administrative department, and the use of advanced electronic equipment to make audio-visual materials, etc. to preserve the evidence, or apply for The people's court adopts pre-litigation evidence preservation.

68. How to judge the probative force of the interested party?
On September 2006, 9, a company signed a technology transfer contract with Zhou.During the use of the transferred technology, Zhou believed that the technology had quality problems and had a dispute with the company. In October 30, the company sent personnel to a place in Zhou to understand and deal with quality issues but failed.Later, Zhou sued the Municipal Intermediate People's Court on the grounds that the technology transferred by the company had quality problems, demanding that the company refund the transfer fee and compensate for losses (the case is under trial).The company believes that Zhou spread rumors such as "patent certificates, award certificates, inspection reports, etc. are all stinky shit bought with money" in public and to the company's patent assignee, which violated the company's reputation right and caused huge loss.Immediately afterwards, the company filed a lawsuit in the court, requiring Zhou to stop the infringement, make a public apology, and compensate for the loss of 2006 yuan.

During the trial, two employees sent by a certain company to a place in Zhou testified in court, confirming that the defendant told him that the plaintiff’s “patent certificates, award certificates, inspection reports, etc. are all shit bought with money” and confirmed that Defendant slandered and blackmailed Plaintiff twice over the phone.In addition, the plaintiff presented the documentary evidence issued by another transferee, that is, "circumstances reflection", the content is that the defendant learned that the transferee was sued due to product quality disputes when selling the products produced by the transferred technology, and demanded to negotiate with the transferee. The plaintiffs jointly sued the case.So, in this case, how effective is the testimony of two employees of a certain company?

Analysis according to law
my country's Civil Procedure Law stipulates that anyone who knows the facts of the case has the responsibility and obligation to testify in court; therefore, the witness testimony of an interested party is also a form of evidence, but the witness testimony provided by an interested party is weaker than other evidence.Is the testimony of the witness credible?Can it be used as a basis for a decision?The key lies in whether the witness's testimony can reflect the facts of the case to be proved and whether it can form a chain of evidence.If the witness testimony of the interested person can corroborate each other and can be corroborated with other evidence, then the witness testimony of the interested person can be completely admissible.

In this case, the two witnesses of the plaintiff are both witnesses who have an interest in the plaintiff, and the probative force of their testimony is not enough to prove the defendant's claim of infringing on the plaintiff's right of reputation.

In addition, the documentary evidence in this case is the "reflection of the situation", which only shows that the defendant knew that other people used the technology transferred by the plaintiff to produce products, and disputes occurred during the sale. The intention of the reputation right is not an act of infringing on the plaintiff's reputation right.

To sum up, the evidence presented by the plaintiff is insufficient to prove its factual claim of reputation infringement.

tips

In law, "interested party" refers to other persons who have a special relationship with the parties in the litigation.This kind of relationship generally includes kinship relationship, labor relationship, administrative affiliation relationship, etc.Because of the above-mentioned relationship, the testimony of such people will be more or less affected by emotional factors, so the law has made more restrictions on such witnesses.

(End of this chapter)