legal master

Chapter 4 Questions and Answers about Marriage and Inheritance (3)
From a negative point of view, the "Reply" has too harsh and strict regulations on the judgment standard of illegal evidence, that is, the standard of legality of audio recordings is limited to the consent of the other party, and recording without the consent of the other party is not legal. , cannot be used as evidence.Judging from the effects of trial practice over the past few years, adopting this illegal evidence standard is tantamount to excluding the existence value of audio-visual materials as a type of evidence in fact.Because in practice, it is extremely rare for one party to agree to the other party to record its conversation as evidence preservation.Even if it has been agreed in fact, if a dispute arises and is brought to the court, it will be flatly denied, and the other party's secret recording will be used as a defense to exclude its evidentiary effect.According to the "Reply", even if the judges are convinced of the authenticity of the evidence content, they cannot protect the obligee, and the practitioners have a lot of opinions on this.

In view of the above, Article 68 of the "Regulations on Evidence" stipulates that "evidence obtained by infringing 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."Criticism inherits the rational connotation of the "Reply" on the legality of evidence and the exclusion rules of illegal evidence, and re-clarifies the judgment standard of illegal evidence, that is, dividing it by violating the legitimate rights and interests of others (such as intentionally violating social public interests and social morals and infringing on the privacy of others) ) or evidence obtained by methods that violate the prohibitive provisions of the law (such as wiretapping), other circumstances shall not be regarded as illegal evidence.

In addition, the court judges whether the relationship between the parties is broken or not, based on a comprehensive analysis of the basis of marriage, feelings after marriage, reasons for divorce, and the possibility of reconciliation.

tips

When using recording evidence in litigation, we must pay attention to the following points: (1) The method of obtaining the recording must be legal.As long as the legitimate rights and interests of others are not violated, especially the right to privacy, the court’s support for this type of recording evidence is very high; (2) There should be other evidence to corroborate it.Because, for a single recording evidence, the court will not use it as the basis for the decision; (3) The recording must directly point to the facts to be proved, and its statement should be clear and the tone should be positive.Assumptions, rhetorical questions, and interrogative sentences express and infer facts, and their evidentiary validity cannot be determined.

8. Can the court organize cross-examination by the parties after the adjournment?

A and B are husband and wife.A is an employee of a certain unit, and B is an unemployed person.Now the two are divorced, and A's parents have a dispute over the 10000 yuan raised by A in his work unit.The case was closed in August 2004.On a certain day in October, the court called to inform that A and A's parents provided new evidence, proving that the 8 yuan was paid by A's parents.

The following evidence exists:

1.8. During the court hearing in August, A approved the fund-raising fund of 10000 yuan, but did not show the receipt of the fund-raising fund and said that only the employees of Unit A had the right to raise funds.

2.现在乙估计甲和其父母提供的新的证据可能是：（1）甲的父母在集资前从银行取了10000元的取款记录。（2）甲的所在单位出示的证明，证实甲的集资款是甲的父母的。（3）甲的所在单位出具的收款收据，该收据上是甲的父母的名字。

那么，1.法院在闭庭后能否再组织当事人质征？当事人是否可以不质证？2.（1）（2）（3）项是不是新的证据？如果是能证明什么？
Analysis according to law
If the court in this case specifies a time limit for producing evidence, then Party A shall submit evidentiary materials to the people's court within the time limit for producing evidence.For the evidence materials submitted by the parties after the deadline, the people's court will not organize cross-examination during the trial.Party B has the right to refuse to conduct cross-examination.

Article 108 (110) of my country's "Civil Procedure Law" stipulates that "there are specific claims, facts, and reasons" as one of the conditions that the parties must meet to sue.Item (125) of Article [-] includes "evidence and sources of evidence, names and addresses of witnesses" as one of the items that should be stated in the complaint.Article [-] stipulates that "the parties may present new evidence in court".It can be seen from this that the parties have the right to present new evidence at any time, no matter whether they are in the first-instance procedure or the second-instance procedure, and no matter what stage the lawsuit is in.However, there is no clear definition of what constitutes "new evidence".Based on this situation, in the long-term trial practice, some parties with impure motives did not provide evidence before the trial, made surprise attacks during the trial, or did not provide evidence during the first instance, and then provided evidence during the second instance or retrial. , in order to achieve its purpose of delaying the lawsuit and damaging the legitimate rights and interests of the other party.This practice not only violates the principle of good faith that parties should follow in civil activities and civil litigation activities, but also seriously interferes with the normal progress of litigation activities, and also causes a great waste of limited trial resources, which leads to low trial efficiency. an important reason.

Long-term judicial practice has proved that in the case of rapid economic development and the rapid increase in the number of disputes brought to the court by the parties, unilateral pursuit of objective truth and allowing the parties to submit evidence to the court without any restrictions often leads to protracted litigation. Indecision has greatly affected the social and economic benefits of trial work, and its negative effects are huge: it will not only damage the authority of the court's decision, but also damage the interests of the opposing party.In order to overcome the negative impact of "the principle of presenting evidence at any time" on trial practice, the "new evidence" stipulated in Article 41 of the "Evidence Regulations" and Article 125, Paragraph 1 of the "Civil Procedure Law" refers to the following situations:

1. New evidence in the first-instance procedure includes: evidence newly discovered by the party after the expiration of the time limit for producing evidence in the first instance; evidence that the party cannot provide within the time limit for producing evidence due to objective reasons, and is still unable to provide evidence within the extended time limit with the permission of the people's court ;

2. New evidence in the second-instance procedure includes: newly discovered evidence after the end of the first-instance trial; the party concerned applied to the people's court for investigation and collection of evidence before the expiry of the first-instance evidence period but was not approved, and the second-instance court found that it should be allowed after review and obtained according to the application of the party evidence.

At the same time, Paragraph 42 of Article 1 of the "Regulations on Evidence" stipulates: "Where a party provides new evidence during the first-instance procedure, it shall be presented before or during the first-instance trial."

Where a party provides new evidence during the second-instance procedure, it shall submit it before or during the second-instance trial; if the second-instance trial does not require a trial, it shall submit it within the time limit specified by the people's court.

(1) (2) (3) According to the above provisions, it is specifically judged whether it is new evidence. If it can be proved that A’s fund-raising funds were paid by his parents, it shall be judged by the court.In addition, if the party provides new evidence during the first-instance procedure, it should be presented before or during the first-instance trial.Accordingly, after the adjournment, the court should no longer organize cross-examination.

tips

The time limit for producing evidence is one of the focal issues in the evidence system. If there is only a provision on the burden of proof in civil litigation, but no provision on the period of the burden of proof, it will bring a lot of trouble to the civil trial work. urged, but refused to provide relevant evidence, making it difficult to conclude the case.Some parties did not provide evidence in the first instance, and when the result of the first instance was not favorable to them, they used the evidence to appeal to the court of second instance to overturn the judgment of the first instance, which seriously damaged the authority and seriousness of the law.

After the law stipulates the time limit for producing evidence, the parties must submit evidence within the specified time limit for submitting evidence, otherwise, they may have sufficient evidence in hand and lose the lawsuit instead of winning the lawsuit easily.

9. Are audio-visual materials collected by one party without the other party's knowledge as illegal evidence?
Li Mou, who lives in a certain district of a certain city, married his wife Yao Mou in 2000. At first, the husband and wife had a harmonious relationship and had a daughter.But since 2005, after Li was laid off to drive a taxi for a living, the relationship between husband and wife has become worse and worse, and they often quarrel about family trivial matters, which has reached the point of irreconcilability.Later, Yao simply returned to her natal family and separated from Li.Li met his wife many times at first, hoping to get back together, but to no avail.So in August 2006, Li sued to the court, requesting a divorce from Yao and splitting the husband and wife's joint savings of more than 8 yuan kept by Yao.

During the court hearing, Li said that he had handed over all his work savings and laid-off buyout fees to Yao, and now the husband and wife have more than 10 yuan in deposits, and asked Yao to pay him 8 yuan.Yao agreed to the divorce, but denied that the two parties had joint deposits, claiming that he had no money.Unexpectedly, at this time, Li suddenly took out a tape. The content of the recording was the conversation between Li and Yao, and they talked about whether to divorce and the deposit of more than 10 yuan.It turned out that when Li sued for divorce, he considered that he had always handed over the money directly to Yao for safekeeping, no one else could testify, and he did not know the passbook. In order to prevent Yao from denying the joint deposit, he quietly kept the conversation between the two. The audio was recorded for later use as evidence, and it turned out to be useful in the trial.

After the trial, the court held that, according to the "Regulations on Evidence", the audio-visual materials collected by one party without the other party's knowledge shall not be regarded as illegal evidence.The recording showed the fact that the two parties had a joint deposit of more than 10 yuan, and the defendant Yao recognized that it was his conversation with Li, which can be used as evidence to determine the fact.

According to the other property conditions of the two parties, the court made a judgment to allow the two to divorce, the shared house of the two should be owned by Yao, and Yao should pay Li a deposit of 7 yuan.

Analysis according to law
This case is a case of property division disputes during divorce.

The court's acceptance of the recorded evidence provided by Li and the decision to divide the joint deposits of the husband and wife according to the law are correct, in line with the requirements for the determination of evidence in civil proceedings, and at the same time fully embody the legislative spirit of the Marriage Law and protect the legitimate rights and interests of both husband and wife. .In this case, there are two issues worthy of attention.

1. How to divide the joint property of husband and wife in divorce?
Article 17 of my country's "Marriage Law" stipulates that the following properties acquired by husband and wife during the existence of the marriage relationship shall be jointly owned by the husband and wife, including wages, bonuses, income from production and operation, income from intellectual property rights, Property acquired by inheritance or gift, and other property that should be jointly owned.It also stipulates that the husband and wife can agree on the ownership of the property acquired during the marriage relationship and the personal property before marriage, and if there is an agreement, the ownership will be determined according to the agreement.If the husband and wife have not agreed or agreed that it is jointly owned by the husband and wife, the husband and wife have equal rights to deal with it.In this case, the deposit of more than 10 yuan was the joint deposit of the husband and wife during the existence of the marriage relationship, and the husband and wife did not make a special agreement on this. The court recognized it as the joint property of the husband and wife and divided it equally in accordance with the marriage law. principle of equality between men and women.

2. Can audio-visual materials be used as evidence in civil proceedings?

Without the consent of the other party, can the private recording material be used as evidence in a civil lawsuit, and can the court recognize the fact reproduced in the recording material as a legal fact, so as to make a judgment based on it? The "Regulations on Evidence" clearly stipulates: First, evidence obtained by infringing on the legitimate rights and interests of others (such as violating social public interests or social morality, infringing on the privacy of others) or violating the prohibitive provisions of the law cannot be used as evidence to determine the facts of the case; Questionable audio-visual materials cannot be used alone as evidence for determining the facts of a case; thirdly, for doubtful audio-visual materials that are corroborated by other evidence and obtained by legal means, as long as the other party has no sufficient evidence to the contrary, the people's court shall confirm its evidence. may be used as evidence in civil proceedings.

Accordingly, in this case, Li recorded their conversation about the 10 yuan deposit, which did not infringe on the legal rights and privacy of others, and his method did not violate the prohibitive provisions of the law. Yao also fully admitted the content of the recording during cross-examination in court. Therefore, the court can completely use this recording as evidence to determine that there is indeed a joint deposit.

To sum up, in this case, the court took the recording materials provided by Li as one of the evidences to determine the legal fact of joint deposits, and the judgment to divide the deposits equally complied with the law.

tips

The development of science and technology not only makes the evidence form of audio-visual materials quite superior, but also makes it easier to be forged and tampered with than other evidence, and this kind of forgery and tampering is not as obvious as traditional documentary evidence. It is quite difficult to identify and screen traces.Therefore, the examination and judgment of audio-visual materials must also rely on certain scientific techniques, so that the evidentiary value of audio-visual materials will not be overwhelmed by its weaknesses.

At the same time, if we want to use audio-visual materials in a lawsuit, we must pay attention to the evidence not to infringe on the privacy of others. In addition, we must collect more relevant evidence to support the audio-visual materials.

10. Is the evidence obtained by catching rape and taking photos legal?
Lin's husband, Guo, and Huang had a cohabitation relationship outside of marriage, which gradually led to the deterioration of the relationship between the husband and wife. Lin had no choice but to sue for divorce from Guo, and demanded compensation from Guo for compensation according to the marriage law. loss.However, Ms. Lin has been struggling to collect evidence that Ms. Guo and Ms. Huang have an extramarital cohabitation relationship.At noon one day, a female Lin pretended to be on a business trip. When she returned home that night, she found that a certain man Guo and a female Huang were sleeping together on the bed at home, and they immediately took pictures.

Afterwards, Lin sued the court, requesting that she and Guo be divorced, and that Guo be compensated 1 yuan for the mental loss she suffered because of her husband's affair.Guo Mouman agreed to the divorce, saying that he had known Huang Mou for more than a year, but denied that he had an extramarital cohabitation relationship with Huang, and said that the evidence obtained by Lin Mou from catching rape and taking pictures was not legal and should not As the factual basis for determining that he and Huang have a cohabitation relationship outside of marriage.

After the trial, the court of first instance held that both parties claimed that the relationship between husband and wife had indeed broken down, and both requested a divorce, which should be granted according to law.In order to protect her legitimate rights and interests, it is legal for Lin to obtain evidence by taking pictures of her husband living with others at home. This evidence should be considered valid, because Guo has known Huang for more than a year. During the trial process of the whole case, it can be determined that Guo and Huang have a cohabitation relationship outside of marriage.Now that Guo Xunan lived with others and the two parties divorced, Lin Xnv, as the innocent party, claimed to Guo Xunan for the mental damage she suffered as a result. This claim has a legal basis and should be supported according to law.

Based on this, the court decided to allow Lin and Guo to divorce according to the specific circumstances of the case, and Guo also compensated Lin for mental loss of 8000 yuan.After the verdict of the first instance was pronounced, the evidence Guo obtained by taking pictures of rape was not legal, and he appealed on the grounds that he should not compensate Lin for her mental loss. The court of second instance rejected his appeal and upheld the original judgment.

Analysis according to law
The focus of the trial of this case is whether the evidence obtained by Ms. Lin by catching rape and taking pictures is legal and whether it can be used as the basis for deciding the case.In essence, Lin's private interests in evidence collection and her husband's privacy interests conflicted, and the law gave priority to protecting which right.

See the second section of Chapter 2 of this book for details.

tips

In the past, the law stipulated that privately photographed and recorded materials were not legal and could not be used as evidence.However, the "Regulations on Evidence" implemented on April 2002, 4 clarified the criteria for judging illegal evidence, which means that some evidence that was not used by courts before, such as: privately recorded audio and video materials, etc. Evidence used.This means that candid photos can be used as evidence, but care should be taken not to violate personal privacy.

11. How do you prove that the property is yours if you break up the cohabitation?
Xia and her boyfriend Zhou lived together for more than 4 years, and jointly paid for a house in a certain city. Xia thought, "When I bought the house, I felt that we were all a family. I didn't care too much, so I signed the contract in the name of my boyfriend." up".Not long ago, my boyfriend suddenly announced that he had a new girlfriend and proposed to break up with her.When suing, a woman named Xia claimed that she and her boyfriend had a child over one year old, and now "no property is left", and asked the court to award the house to her.

Analysis according to law
Currently, the law does not protect non-marital cohabitation relationships. In the laws before 1988, there was the term "de facto marriage", which refers to a form of marriage in which a man and a woman without a spouse live together as husband and wife without registration of marriage, and is recognized by the surrounding masses.However, the Marriage Registration Regulations in 1994 did not recognize de facto marriages, and the new Marriage Law further confirmed this principle.Since the law does not protect non-marital cohabitation relationships, courts generally do not accept requests to terminate cohabitation relationships, and the law "regardless" of cohabitation phenomena.Disputes such as property division and child custody arising under a cohabitation relationship are handled differently from disputes arising under a husband-wife relationship.

In this case, Xia could only get the real estate if she produced enough evidence to prove that the house was bought by her and her boyfriend.Under the marriage relationship, even if the name of one party is written on the house purchase contract, as long as there is no agreement in advance, it belongs to the joint property.

tips

(End of this chapter)