legal master

Chapter 42 Questions and Answers on the Evidence of Disputes over House Sale and Demolition (8)
Feng Mou had a dispute with others due to the house lease, and the trial was held in mid-April. Now the court is temporarily adjourned. The trial result is very unfavorable to Feng Mou.The court’s civil litigation notice of evidence stated: For cases that are tried under ordinary procedures, the parties should submit all evidence materials to this court within 4 days from the day after receiving the case notice or the notice of responding to the lawsuit.Failure to submit evidentiary materials within the time limit for adducing evidence shall be deemed as a waiver of the right to adduce evidence.

Now Feng has discovered new evidence, which is very important to Feng and can almost win Feng's case, so can Feng still bring it up in the next court session?
Analysis according to law
According to Article 33 of the Supreme People's Court's "Several Provisions on Evidence in Civil Procedures", "The people's court shall serve the notice of proof to the parties at the same time as the notice of acceptance of the case and the notice of responding to the lawsuit. The notice of proof shall specify The principles and requirements for the distribution of the burden of proof, the circumstances under which an application can be made to the people's court for investigation and evidence collection, the time limit for producing evidence designated by the people's court according to the case conditions, and the legal consequences of overdue evidence. The time limit for producing evidence can be agreed upon by the parties and approved by the people's court. Where the people's court specifies a time limit for producing evidence, the time limit specified shall not be less than [-] days, and shall be calculated from the day after the parties receive the notice of acceptance of the case and the notice of responding to the lawsuit."

Article 34 stipulates: "The parties shall submit evidence materials to the people's court within the time limit for producing evidence. If the parties fail to submit evidence within the time limit, they shall be deemed to have waived the right to produce evidence. The people's court shall not organize cross-examination of evidence materials submitted by the parties after the time limit. However, Except where the other party agrees to cross-examination. If the party adds or changes the claims or files a counterclaim, it shall be filed before the expiration of the time limit for producing evidence."

At the same time, Article 41 stipulates that the "new evidence" stipulated in Article 120, Paragraph [-] of the Civil Procedure Law refers to the following circumstances: ([-]) New evidence in the first-instance procedure includes: after the expiration of the time limit for producing evidence in the first-instance trial, the parties Newly discovered evidence; evidence that the party concerned is indeed unable to 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. ([-]) 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 of.

Article 42 stipulates: "Where a party provides new evidence in the first-instance procedure, it shall submit it before or during the first-instance trial. If a party provides new evidence in the second-instance procedure, it shall submit it before or during the second-instance trial; If the second instance does not need to be heard in court, it shall be submitted within the time limit specified by the people's court."

Article 43 stipulates: "If the evidence provided by the party after the expiry of the time limit for producing evidence is not new evidence, the people's court shall not accept it. The party concerned has been approved by the people's court to postpone the proof, but fails to provide it within the permitted time limit due to objective reasons, and the case shall not be heard. If the evidence may cause the referee to be obviously unfair, the evidence it provides may be regarded as new evidence.”

Therefore, Feng can completely present new evidence.You can refer to the above regulations.

tips

Now when you go to the court to file a civil lawsuit, the court will issue a "Notice of Producing Evidence" to the parties, informing the parties of the responsibility and consequences of producing evidence. After receiving the Notice of Producing Evidence, the parties should read it carefully to understand their rights and obligations in producing evidence.

32. Can audio-visual materials obtained privately be used as evidence?

On May 2004, 5, Dong and Li signed a rental agreement, and Dong rented a house of Li from May 14, 2004 to May 5, 20, with an annual rent of 2005 yuan.During the signing of the contract, Dong paid Li a deposit of 5 yuan, and Li handed Dong three sets of house keys.Due to an urgent need for money due to an accident at home, on May 20, Dong Mou proposed to terminate the contract and asked Li Mou to return 1.9 yuan.

During the trial, Dong and Li disagreed on whether to pay the rent of 1.9 yuan.During the dispute, Dong showed his trump card - the recording of the conversation between Dong's cousin and Li's son about rent collection.

Analysis according to law
Fa Fu (1995) No. 2 issued by the Supreme People's Court, "Reply Concerning Whether Materials Recorded Without the Consent of the Opponent Party Can Be Used as Evidence", established for the first time the exclusionary rules and judgment standards for illegal evidence in civil litigation in my country.The reply pointed out that 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, and the recording materials obtained by this means cannot be used as evidence.

In a positive sense, the reply clearly confirms that evidence should be obtained legally, 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 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 .This reply is not a simple restriction on the qualification of evidence (evidence capacity), but in a negative sense, it establishes the admissibility rule in the evidence law of our country, that is, the rule of exclusion of illegal evidence.

From a negative point of view, the approval standard for judging illegal evidence is too harsh and severe, that is, the legality standard of audio recordings is limited to the consent of the other party, and the recording without the consent of the other party is not legal and cannot be used as evidence. Evidence used.Judging from the effects of trial practice over the past few years, the adoption of 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.For example, in a loan dispute case in Hebei, the debtor never denied the fact that he owed money outside the litigation process, but after the creditor brought the lawsuit to the court, the debtor firmly denied it.The creditor was unable to provide relevant evidence because it was an oral agreement and it was delivered in cash.To this end, the creditor invited the debtor to settle outside the lawsuit, and privately recorded the debtor's on-the-spot confession of the fact of arrears.When the creditor submitted this only evidence to the court, the debtor invoked the provisions of the "Reply" to request that its evidentiary effect be excluded.According to the provisions of the "Reply", the evidence should be excluded, and the creditor cannot bear the consequences of losing the lawsuit because of the proof.From today's point of view, the creditor's private recording in this case is actually the evidence preservation of the debtor's confession outside the lawsuit.In this case, the audio recording evidence is excluded, which in fact excludes the possibility of audio recording evidence as a type of evidence.

In view of the above, Article 68 of the Supreme People's Court's "Several Provisions on Evidence in Civil Procedures" stipulates: "Evidence obtained by infringing on 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.

Therefore, the recording evidence in this case did not infringe upon the lawful rights and interests of the other party, and should be valid evidence after comprehensive analysis.

tips

When using recording evidence in litigation, we must pay attention to the following points: 1. The recording method must be legal.As long as the legitimate rights and interests of others are not violated, especially the right to privacy, the probability that the court will support 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 serve 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 affirmative.Assumptions, rhetorical questions, and interrogative sentences express and infer facts, and their evidentiary validity cannot be determined.

33. Can e-mails be used as evidence in real estate litigation?

In a certain housing dispute, Ming, a party concerned, was well prepared, and sent e-mails to the other party B many times to claim his rights. Opening these two mailboxes can prove that the email has been sent to B and the full text of the document.But B denied that he had received the email, and opened his mailbox to confirm it, and B also claimed that it was time-barred.And Ming pointed out that the owner of the mailbox can permanently delete the received emails, and this part of the emails has been permanently deleted by B.And B argues that it never deleted any emails.So, how to determine the evidence of both parties?

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 sending it 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 occurs in the 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 problems that need to be resolved urgently.

Whether e-mail can be used as evidence, there is no regulation in our country at present, but it is a reality that e-mail has been accepted by modern economic society.E-commerce, e-education, e-government, etc. are the products of modern information society. Article 11 of the "Contract Law" stipulates that written form refers to contracts, letters and data messages (including telegrams, telexes, facsimiles, electronic data interchange and e-mails) and other forms that can tangibly express the contents contained therein.Email has been included as a form of written contract.The two parties to the contract reach an agreement by e-mail to realize the purchase behavior.Its purchase, settlement, query, return, claim, etc. are all realized by e-mail.Nowadays, online booking, online registration, and online consultation have actually entered our lives.It can be seen that in a lawsuit involving this, the party with the burden of proof will inevitably submit the e-mails exchanged between the two parties as evidence to the court to support their own claims.This provides a realistic possibility and necessity for e-mails to become evidence.

Therefore, if the e-mail can prove the facts of the case, its evidentiary effect cannot be doubted.However, whether the process of e-mail extraction from the computer is fair, objective, and legal is the main basis for judging whether the e-mail has evidentiary effect.Therefore, from the perspective of this case, if Ming has other relevant evidence to prove the authenticity of these emails, then these emails will be recognized as valid evidence by the court in the lawsuit.Otherwise, only the emails themselves, cannot be used as a basis for finalizing the case alone.

tips

Before the lawsuit, the parties may ask the notary office to issue a notarized document, and may also adopt methods such as witnessing by lawyers, certification by diplomatic agencies, certification by industrial and commercial administrative departments, and use of advanced electronic equipment to make audio-visual materials, etc., to preserve evidence, or apply to the people's court for pre-litigation Evidence preservation.For evidence collection, it is best to look at the source code and copy and paste all the content into a word processing software for editing and printing, so that all the content in the email can be obtained; the content in the attachment should be as different as possible according to different file formats Use high-end equipment to print out distortions; if it is a sound file, it can be recorded into text and printed out, and the original sound file is kept for future cross-examination in court trials.

34. If the indoor air quality of the house is unqualified, how can the lessee provide evidence to request the termination of the house lease contract?
Lin signed a house lease contract with the landlord in June 2004.After moving in, Lin felt various discomforts.He suspected that there was something wrong with the rented house, so he asked someone to test the air quality of the house.It was found that the formaldehyde in the indoor air exceeded the standard.He formally proposed to the landlord to terminate the contract and asked the landlord to return the paid rent and security deposit, but the landlord refused, and Lin sued the court.After the court hearing, the court made a judgment in court: the lease contract between Lin and the landlord on the above-mentioned house was terminated on August 6, 2004.The landlord returned RMB 8 of rent and RMB 14 of security deposit to Mr. Lin.

Analysis according to law
After both parties sign the lease contract, both parties must undertake certain obligations and enjoy certain rights, including:
The rights of the lessee include: enjoying the legal right to use the real estate listed in the lease contract and within the validity period of the lease; requiring the real estate operator to repair the leased house according to regulations; supervising the real estate operator (house lessor) The right to suggest; when the lease expires, the lessee has the priority to continue renting or purchasing.Its obligations include: paying the rent on time; not subletting, subletting, transferring the leased property or changing the purpose of the property without authorization; properly keeping and caring for the decoration and equipment of the house; complying with the policies and regulations of the state on property leasing.

The rights of the lessor include: the right to collect rent on schedule, and the right to supervise and inspect the lessee; the lessee has the right to terminate the lease relationship in accordance with the provisions of the contract if the lessee violates the contract, and has the right to take back the property and deal with it in accordance with laws and regulations; Acts that violate relevant national and local policies and regulations.The obligations that should be fulfilled include: guaranteeing the legal right of use of the lessee; maintaining the property according to the scope of repairs stipulated in the contract; publicizing the relevant regulations of the property.

In addition, because the house is a specific object, both parties should clearly agree on the quality and quantity of the subject matter in the lease contract.Quality refers to the internal structure of the house, building materials used, corresponding supporting facilities, etc., while quantity refers to the area and number of rooms of the house.As for housing quality issues, evidence can also be obtained through entrusted appraisal just like buying a house.House air quality testing standards are "Indoor Air Quality Standards" (hereinafter referred to as "Standards") formulated by the State Administration of Quality Supervision, Inspection and Quarantine, the State Environmental Protection Administration, and the Ministry of Health. This standard was officially implemented on March 2003, 3. The "Standard" introduces the concept of indoor air quality, and clearly puts forward the requirement that "indoor air should be non-toxic, harmless, and have no abnormal smell".

The control items stipulated in it include chemical, physical, biological and radioactive pollution.The chemical pollutants controlled by regulations include not only familiar pollutants such as formaldehyde, benzene, ammonia, and radon, but also 13 chemical pollutants such as inhalable particulate matter, carbon dioxide, and sulfur dioxide. The "Standard" combines the actual situation of our country, not only considering the air volume, temperature and humidity, and pollutants such as formaldehyde and benzene in developed areas and urban buildings, but also according to the use of raw coal for heating and cooking in some underdeveloped areas. Pollution standards for indoor carbon monoxide, carbon dioxide and nitrogen dioxide in similar areas. The "Indoor Air Quality Standards", together with the "Code for Indoor Environmental Pollution Control of Civil Construction Engineering" previously issued by the National Standards Committee, and ten "Limits of Hazardous Substances in Interior Decoration Materials" together constitute a relatively complete indoor environmental pollution control and evaluation system in China.

tips

Housing lease contract (sample)
Both parties to the contract:

Lessor: hereinafter referred to as Party A

Lessee: hereinafter referred to as Party B

In accordance with the "Contract Law of the People's Republic of China" and relevant regulations, in order to clarify the rights and obligations of Party A and Party B, this contract is signed after mutual agreement.

Article [-] of the House Lease Contract Party A will lease the house located in the city street and lane, with a construction area of ​​square meters, a usable area of ​​square meters, type, structure grade, damage grade, and main decoration equipment, to Party B for rent. use.

The second lease term of the house lease contract

The lease period is a total of months. Party A will hand over the leased house to Party B for use from the year, month, and take it back on the year, month, day.

In any of the following circumstances, Party B may terminate the contract and take back the house:
1. Subletting, subletting, transferring, sublenting, joint operation, buying shares or swapping and exchanging with others without authorization;

2. Use the rented house to carry out illegal activities and damage the public interest;

3. Months in arrears of rent or vacant customs clearance.

After the contract expires, if Party A still continues to rent out the house, Party B has the priority to rent.

When the lease contract is terminated due to expiration, if Party B cannot find a house, it can negotiate with Party A to extend the lease term as appropriate.

Article [-] of the House Leasing Contract: Rent and Rent Payment Deadline, Taxes and Tax Payment Methods
Party A and Party B agree on a monthly rent of RMB, which shall be paid by Party B to Party A on .Pay later.When collecting rent, Party A must issue a rent collection certificate supervised by tax authorities or financial departments above the county level.Party B who does not have a legal rent collection certificate may refuse to pay.

Party A and Party B shall pay real estate rental tax and fees according to the prescribed tax rate and standard, and the payment method shall be implemented in accordance with the following paragraph:
1. The proportion stipulated in the tax law shall be borne by Party A and Party B respectively;
2. Party A and Party B agree.

House Lease Contract Article [-] House Repair and Decoration During the Lease Period

It is Party A's obligation to repair the house.Party A shall regularly inspect the leased house and its equipment, and repair it in time to ensure that there is no leakage, no flooding, three links (indoor water supply, sewage, lighting) and doors and windows are in order to ensure the safe and normal use of Party B.

(End of this chapter)