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Chapter 7 Questions and Answers about Marriage and Inheritance (6)
Audio-visual materials are a kind of evidence, including audio tapes, telephone recordings, and data and materials stored in video tapes, CDs, TV videos, film films, and computer devices.The review and judgment of audio-visual materials shall abide by the following rules:
The first is to review and judge the production of audiovisual materials.First of all, it is up to the sound recorder and the video recorder to prove the time, place, and under what circumstances the sound and images were recorded, etc.; secondly, if the sound and video recordings are copied, the copyer should also prove that no editing was added during the copying. Minus audio and video recordings; again, it is up to the civil parties and criminal defendants to identify whether they are their own voices and images.For example, methods such as voiceprint identification can be used to identify voices.

Second, it is necessary to examine the authenticity of the content of audio-visual materials.To confirm the probative force of audio-visual materials, the key is to confirm the authenticity of its content.For example, through the method of slow playback, it is possible to identify whether there is degaussing and clipping; through the identification of a high-resolution instrument, it is possible to check whether the recorded sound is forged; finally, it is also possible to check the tape to see if there is any clipping Mark of.

Third, the audio-visual materials must be corroborated with other evidence in the case.Examining and judging audio-visual materials is the same as testing other litigation evidence, and other evidence in the case must also be used to corroborate the audio-visual materials. The materials are corroborated with the on-site inspection records and identification conclusions.If they are consistent, the reason for the consistency should be explained; if there is a contradiction, the cause of the contradiction should be analyzed and a solution to the contradiction should be proposed.

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The collection of audio-visual evidence should be reviewed objectively and comprehensively.Audio-visual evidence mostly uses video and sound to demonstrate the facts of the case. Since video and sound are continuous, when collecting audio-visual evidence, it must be reviewed objectively and comprehensively, and those that may have been falsified, processed, Altered and other technically processed audio-visual materials must be strictly censored. Article 69 of the "Regulations on Evidence" also clearly stipulates that if there are doubts in the collected computer data or audio-visual materials such as audio and video recordings, they cannot be used as the basis for deciding a case.Because, when collecting audio-visual evidence, we must use advanced scientific and technological means to carefully analyze and compare the audio-visual materials to ensure that the collected audio-visual materials are true and effective.

20. Can the husband's diary be used as evidence of "contracting mistresses"?
A woman in a certain city took her husband's diary to court and used it as evidence that her husband had a mistress and asked for a divorce.The court issued a judgment allowing the parties to divorce.

Ms. Fang Zheng, the plaintiff in the case, said that she and He Mouman married in free love in 1994, and they had a son after marriage. Sons are no longer as concerned as they used to be.One day, after Ms. Zheng accidentally saw the diary written by He Mouman, she discovered that her husband had two mistresses.In a fit of rage, Ms. Zheng went to court, insisting on a divorce from He Mouman, and claimed 2004 yuan for mental damage from He Mouman on the grounds that He Mouman often beat and scolded herself, causing her to go to the hospital for treatment. .

Although a city court did not confirm the diary as valid evidence, it confirmed that He Mouman lacked family values, rarely cared about his wife and children, and had too close contacts with women outside of marriage, so he supported Ms. Zheng's divorce request.

Analysis according to law
Although judging from the verdict of this case, Ms. Zheng's husband's diary was not used as a basis for finalizing the case, but judging from the form of evidence, the diary is documentary evidence in a marriage case.

Documentary evidence is a type of statutory evidence stipulated in the Civil Procedure Law. Anything that records people's thoughts or behaviors in words and expresses certain thoughts in symbols and diagrams, and whose content can prove the real situation of the case, is called documentary evidence.For example, various documents, contracts, bills, bills of lading, IOUs, power of attorney, trademark patterns, marriage certificates, birth certificates, land certificates, real estate certificates, correspondence, etc.The reason why these items can be called documentary evidence is not only because they all have a written form, but more importantly, the content they record or express can prove the facts of the case.There are many types and forms of documentary evidence, which can be divided into documentary evidence made by units (official documents) and documentary evidence made by individuals (private documents) according to the different subjects of making documentary evidence; according to the content of documentary evidence, it can be divided into disciplinary documentary evidence and report According to the form of documentary evidence, it can be divided into general documentary evidence and specific documentary evidence; according to the production methods of documentary evidence, it can be divided into original, original, copy, photocopy and excerpt.The original (also known as the original) refers to the original document first created by the document producer; the document that is copied and printed in full from the original and has the same effect as the original is called the original; the document that is copied and printed in full from the original is called the original. Copy refers to the material formed by duplicating documentary evidence with a photocopier; excerpt refers to a document formed by only excerpting the original or part of the original document or shortening the original document.Documentary evidence is the most common and extensively used evidence in civil litigation, and it is absolutely indispensable in some disputes. Therefore, it has a prominent position in the types of civil litigation evidence and plays a very important role.

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For documentary evidence, when the parties, their litigation representatives, and investigators want to collect the evidence and cannot obtain the original of the evidence, they can obtain a copy or reproduction of the document. If the content of the document is too large and complicated, The valuable content is only limited to a small part, or the production or storage organization of the document has already archived and managed the original document as a national archive according to the needs of the work, and cannot provide the original document, but the content of the information inquiry service provided by the society can be queried When extracting or downsizing data from archives, the party concerned extracts useful parts of the documents and materials produced by the relevant unit and related to the facts to be proved in the case, and uses them as evidence, or directly calls the document production and storage authority. It is a wise choice to use the relevant content materials of the information query as evidence.

21. In a matrimonial property case, what legal consequences will there be if the evidence I provide is insufficient?
Old man Li's family lives in a renovated house. In January 1995, old man Li's son gave birth to a son. In June 1, Old Man Li's son died in a traffic accident.The daughter-in-law ran away from home and her whereabouts are unknown, while the grandson lived with his grandfather.Now the old man Li and his wife have sued their daughter-in-law and grandson to the court.According to the statement, in 2006, the 6 houses renovated by the couple were donated to the son before marriage. According to the new Marriage Law, they were the son's personal property before marriage, and the original and the defendant were required to inherit all the property as the son's personal inheritance.

During the trial, the court appointed Li's grandfather as the legal representative because the grandson of Old Man Li was a minor.After being summoned by the court, neither Zhang's grandson nor his grandfather appeared in court; the whereabouts of his daughter-in-law were unknown, and the court served the indictment and court summons after the announcement, but did not appear in court.The court then tried in absentia according to law.

However, when presenting evidence, Mr. Li could not provide evidence to prove that the disputed real estate was a gift from his son before marriage. The court can only presume that it was a gift after marriage. Therefore, the above-mentioned real estate is regarded as the joint property of the young couple. Then as personal property, it will be divided equally among the four parties concerned.

Analysis according to law
Article 76 of the "Regulations on Evidence" clearly stipulates this: "Where the party concerned has only stated his own statement and cannot provide other relevant evidence, his claim shall not be supported, unless the other party agrees."

[-]. The parties bear the burden of proof
Article 64 of the "Civil Procedure Law" stipulates: "The parties have the responsibility to provide evidence for their own claims." That is, whoever advocates must provide evidence, and the parties are required to provide evidence to prove that their claims are true and legal, in order to be protected by law.If the party concerned has only his own statement and cannot provide other relevant evidence for his claim, unless the party agrees, his claim will not be supported and he will bear the legal consequences of losing the lawsuit.In addition, the evidence provided by the parties around their own claims should have "three characteristics", namely authenticity, relevance, and legality.Evidence that does not have three natures has no legal proof.

[-]. The people's court investigates and collects evidence
This kind of evidence applies to the following situations: (1) The parties and their litigation representatives are unable to collect evidence by themselves due to objective reasons and have submitted an application for evidence collection and evidence clues; (2) It should be inspected or commissioned by the people's court; ( 3) The evidentiary materials put forward by both parties that affect the ascertainment of the main events of the case are contradictory, and their effectiveness cannot be determined after cross-examination in court; (4) Other evidence that the people's court considers needs to be investigated and collected by itself.If the above-mentioned evidence cannot be collected after investigation by the people's court, the party bearing the burden of proof shall still bear the consequences of failing to produce proof.

[-]. Some facts, the parties do not need to prove
For example, one party expressly acknowledges the facts of the case stated by the other party and the claims made by the other party; well-known facts and natural regulations and theorems; another fact that can be inferred based on legal provisions or known facts; A fact determined by a legally effective judgment of the people's court; a fact that has been proved by a valid notarial certificate.

[-]. The infringement litigation in which the defendant is responsible for providing evidence includes the following types
1. Patent infringement lawsuits arising from invention patents of product manufacturing methods;

2. Tort litigation for personal injury caused by highly dangerous operations;
3. Litigation for damages caused by environmental pollution;

4. Infringement lawsuits against buildings or other facilities and objects placed or suspended on buildings that collapse, fall off, or fall and cause damage to people;

5. Tort litigation for human damage caused by raising animals;
6. Relevant laws stipulate that the defendant shall bear the burden of proof.

tips

With the establishment of the socialist market economic system, various economic entities, including citizens, have increasingly frequent and diversified economic exchanges. Lawsuits arising from social responsibility and social obligation are also increasing.Therefore, no matter whether you are the plaintiff or the defendant, if you just state your claims with eloquence without other more powerful evidence such as bills and certificates to prove them, and the other party refuses to accept them, the law can only sympathize with them but cannot support them. .Therefore, in order to protect your legitimate rights and interests, you should keep the evidence "around you".

22. How to distinguish and prove the formation and declaration procedures of invalid marriage and revocable marriage?
Ms. Wang went to the court and insisted on a divorce lawsuit, but the court finally issued a judgment, not only rejected her claim, but also found that the marriage relationship between Ms. Wang and her husband was invalid and confiscated the marriage certificate because the marriage relationship between them was legal. Prohibited consanguineous relationships.

Ms. Wang and her husband, Mr. Zhou, are cousins. They registered their marriage in January 1986 and gave birth to a daughter at the end of the same year. In May 1, Ms. Wang sued her husband to the court for a divorce on the grounds that the relationship between husband and wife had broken down.

The court held that Ms. Wang and Mr. Zhou are aunt cousins, and they are collateral blood relatives within three generations, which is a situation where marriage is prohibited by law.Although the two have been married for 20 years, according to the law, the marriage between the two parties is still invalid, and the above judgment is made accordingly.

Analysis according to law
In 2001, the "Marriage Law" added the content of invalid marriage and revocable marriage, and clearly stipulated the invalid marriage system for the first time.

my country's "Marriage Law" adopts a dual-track system of abstinence and revocation in the basic constitution of the invalid marriage system. The four situations listed in the invalid marriage violate the basic principles of the Marriage Law, so they should all be treated as invalid.That is, Article 10 stipulates: "A marriage is invalid under any of the following circumstances: ([-]) bigamy; ([-]) kinship that prohibits marriage; ([-]) Those who have not reached the legal age for marriage.” For revocable marriages, the Marriage Law only lists one situation, that is, “marriage due to coercion”.

There is no clear regulation on the legislation of the organ for declaring an invalid marriage, which is likely to cause inconsistency in understanding, which in turn leads to operational confusion in judicial practice.One opinion holds that the authority to declare the marriage invalid should be limited to the people's court, and the declaration procedure should adopt a single litigation procedure.Another opinion holds that, depending on the circumstances, it can be announced by the people's court after confirmation in accordance with civil procedures, or by the marriage registration management agency in accordance with administrative procedures.The author agrees to the second point of view.According to the "Regulations on Marriage Registration", it is the legal responsibility of the marriage registration management agency to declare the marriage invalid. As long as there is clear evidence to prove that the marriage relationship of the parties is a legally invalid marriage, the declaration can be made according to law.If the people's court discovers an illegal marriage during the trial of a case, it may directly declare the marriage invalid according to law.

Can the original marriage be declared invalid after the grounds for invalidity are eliminated?An annulment of a marriage is absolutely invalid, as long as it meets several conditions for an annulment of an annulment, it will be invalid, and will not be eliminated due to the passage of time.However, Article 8 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (I) stipulates exceptions: If the statutory invalid marriage has disappeared, the people's court shall not support it." We believe that an invalid marriage is generally obtained by the parties using deception, and in order to maintain the solemnity of the law, such deception should be punished, so even if After the reasons for invalidation are eliminated, the relevant authorities shall also declare the marriage relationship invalid according to law.After the declaration of invalidity, if both parties continue to live together as they wish, they can go through the registration procedures again.

In this case, the close relative relationship between the parties is an irrevocable ground for invalidation, so the court should declare their marriage invalid.

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The similarities and differences between void marriage and revocable marriage.

([-]) Common points
1. If a marriage is declared invalid or revoked, it shall be invalid from the date of marriage registration, and both parties shall not have the rights and obligations of husband and wife.

2. The property acquired during the cohabitation shall be dealt with by the parties through agreement; if the agreement fails, the people's court shall make a judgment based on the principle of taking care of the innocent party.The disposition of property resulting from a marriage invalidated by bigamy shall not infringe upon the property rights of parties to a legal marriage.The provisions of the Marriage Law on parents and children shall apply to the children born to the parties concerned.

([-]) Difference

1. The lack of marriage conditions at the time of marriage is different
What is lacking in a revocable marriage is that the parties to the marriage have violated "marriage must be fully voluntary by both the man and the woman."

An invalid marriage refers to the lack of substantial conditions for marriage when the party registers for marriage due to violation of the prohibition of marriage.

2. Different aging
An annulment of a marriage is absolutely invalid, as long as it meets several conditions for an annulment of a marriage, it will be invalid and will not be eliminated due to the passage of time (exception: in judicial practice, it mainly includes: Both parties are within the legal age of marriage. (1) Those who have a relative who is prohibited from marriage have children or are barren. This belongs to the Interpretation of the Supreme People's Court on Several Issues concerning the Application of the Marriage Law of the People's Republic of China (2) Circumstances stipulated in Article 8: "Where a party applies to the people's court for declaring the marriage invalid in accordance with Article [-] of the Marriage Law, the people's court shall not support it if the statutory invalid marriage has disappeared at the time of the application.").

A revocable marriage is relatively invalid, it has a time limit, and it will be eliminated due to the passage of time, that is, the coerced party's request for revocation of the marriage should be filed within one year from the date of marriage registration.If a party whose personal freedom has been illegally restricted requests the annulment of marriage, he shall file the request within one year from the date of restoration of personal freedom.

3. The requester is different

Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (12) stipulates: "Whoever has the right to apply to the people's court for a marriage that has been registered as invalid in accordance with the provisions of Article [-] of the Marriage Law Subjects include the parties to the marriage and interested parties. Interested parties include: ([-]) close relatives and grassroots organizations of the parties who apply for annulment of marriage on the grounds of bigamy. If it is invalid, it is the close relative of the person who has not reached the legal age of marriage. ([-]) If the application is made to declare the marriage invalid on the grounds that there is a kinship that prohibits marriage, it is the close relative of the party concerned. If the disease is not cured after marriage and the application for annulment of the marriage has not been cured, it is a close relative who lives with the sick person." The identification of close relatives should be based on the provisions of Article [-] of the "Min Tong Opinions".

Paragraph 10 of Article 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China ([-]) stipulates: "The person who requests the annulment of a marriage due to coercion can only be the party to the marriage relationship of the coerced party himself. "

23. What is the probative force of the divorce agreement in the divorce property dispute?
(End of this chapter)