A, cell phone text message evidence ability
Cell phone text message is short for short message service (SMS). Because the length of such a message is very short, it is called SMS, short message, short message, short message. From a legal point of view, the legal relationship in the process of sending and receiving SMS involves three parties, i.e., the sender of the SMS, the SMS service provider (SP) and the recipient of the SMS. In addition, Enhanced Messaging (EMS) and the recently emerging Multimedia Messaging (MMS, also known as MMS) are upgraded versions of SMS, which also use controlled channels and store and forward messages through the SMS platform of the SMS service provider, and are only a little bit more complex than ordinary SMS in terms of individual functions and transmission. Cell phone text messaging as defined herein also includes EMS and MMS. To discuss the evidential capacity of cell phone text messaging, it is necessary to first look at what evidential capacity is. Evidential competence refers to the ability or capacity of a material to be used in strict proof, i.e., to be allowed to be investigated and admitted as evidence. For a material to achieve a standard of what kind of evidence can have the ability, China's academic and practical circles, the general view that should have "objectivity", "relevance" and "legitimacy". ". So, whether the cell phone text messages have this "three" requirements? The following are analyzed: 1. Objectivity. The objectivity of the evidence refers to the evidence itself must be objective, real, not fictional, imaginary, fabricated. Objectivity includes two aspects: first, the content of the evidence has objectivity, that is to say, the content of the evidence must be a reflection of the objective things, even if this reflection may be biased or even wrong, but it must be based on objective facts and prerequisites. Secondly, the form of evidence has the objectivity, that is, the evidence itself has the form of existence, is a kind of objective existence of things, is able to let other people perceive. I - the author believes that the cell phone text messages are to meet the requirements of both aspects. Although the transmission process of cell phone text message is a digital signal transmission and reception, but ultimately it can be in the recipient's cell phone to become people can identify the text, sound and image, its form of objectivity can not be doubted. And a cell phone can prove the facts of the case of the content of the text message is obviously objective, although these contents and no "authentic", and it is easy to be deleted or altered, and also does not leave traces, but can not be denied the objectivity of the cell phone text messages. I think, although easy to delete is the biggest shortcomings of cell phone text messages as evidence, but we can through the research and development of new technologies to gradually overcome the defects, rather than hold a completely negative attitude, not to mention the existing data repair technology can do this. In addition, cell phone text messages can not only be reflected in the inbox of the recipient's cell phone, but also the SMS platform of the SMS service provider will automatically record the transmission of cell phone text messages, and this record can clearly reflect the transmission of cell phone text messages of the specific time and the transmission of the two sides of the cell phone number. 2. Evidence of relevance, refers to a piece of evidence must have a substantial connection with the facts of the case to prove, so that the facts of the case has a certain role in proving. Only those facts or materials with the disputed facts of the case there is a certain connection can be called litigation evidence. In the use of a cell phone text message as a specific case of litigation evidence, must identify the cell phone text message reflects the facts and behavior with the facts of the case has no connection, only those facts related to the case or logically related facts can be considered evidence. For cell phone text message, the text message send and receive is the text message recipient accounted for passive and text message sender accounted for active, text message receive and send this communication behavior is a correspondence. Each cell phone number corresponds to a unique subscriber, and the sending and receiving of cell phone text messages can only take place between two specific cell phone subscribers, and this correspondence can be proved by the service agreement signed between the text message service provider and the subscriber. In the absence of other evidence to the contrary, the act of sending and receiving SMS between two specific cell phone numbers can be recognized as an act of communication between two specific users occurring at a specific time. As long as the party providing the evidence can prove that the content of the cell phone text message is relevant to the case, and is sent from within the other party's cell phone number, it can be shown to have relevance. 3. Legitimacy. The legitimacy of the evidence refers to only take the legal form, with legal, legal subjects by legal means to obtain the evidence material to have the ability to evidence. In practice, the legitimacy of the performance in three aspects: one is the evidence must have a legal form, the second is the evidence must be legal personnel in accordance with the legal procedures for the collection and extraction, the third is the content of the evidence and must be legal. (1) the form of evidence of cell phone text messages have legitimacy. In terms of litigation activities, I - I think that cell phone text messages as evidence submitted to the court, is a legal basis. First of all, the United Nations Commission on International Trade Law, "Model Law on Electronic Commerce," article II (a), "data message" refers to the electronic means, optical means or similar means of generating, storing or transmitting information, these means include, but are not limited to, electronic data interchange (EDI), electronic mail, telegrams, telex or telecopier; "the Chinese people's *** and the country's electronic commerce," "the Chinese people's *** and the country's electronic commerce," "the Chinese people's *** and the country's electronic commerce. Electronic Signature Law of the People's Republic of China (hereinafter referred to as the "Electronic Signature Law"), Article 2, Paragraph 2, provides that "Data message referred to in this Law means information generated, sent, received or stored by electronic, optical, magnetic or similar means." According to the provisions of the two legal provisions, the concept of data message should contain two layers of meaning: 1 data message using electronic, optical, magnetic means or other means with similar functions; 2 data message is the essence of various forms of information. Cell phone text message is to cell phone as the information dissemination terminal and carrier of text, sound or image, its essence is a data information flow, belongs to the category of data message. On the one hand, through the cell phone screen can be completely tangible show the content of the SMS, on the other hand, through the cell phone information download or upload can also be completely at any time to investigate the access to be able to identify the sender of the SMS, the recipient and the time of sending and receiving. Accordingly, the author believes that the cell phone text message conforms to the "Electronic Signature Law" on the relevant constituent elements of the data message, the characteristics of the SMS operation process determines that it can become a kind of data message. Secondly, according to the provisions of article 5 of the model law on electronic commerce, "the legal recognition of the data message shall not be based solely on the information in the form of a data message for the reason of denying its legal effect, validity or enforceability"; "electronic signature law", article 7 also made corresponding provisions: "the data message shall not be used solely because it is in the form of a data message. The message shall not be refused to be used as evidence solely because it is generated, sent, received or stored by electronic, optical, magnetic or similar means". Therefore, cell phone text messages have good reason to become evidence of the factual findings of the case. (2) The legalization of the procedure for the collection of cell phone text messages. Article 43 of the Criminal Procedure Law stipulates: "Judges, procurators and investigators must follow the legal procedures to collect all kinds of evidence that can prove the guilt or innocence of criminal suspects and defendants, and the seriousness of the crime, and it is strictly forbidden to extort confessions by torture and collect evidence by threat, enticement, deception, and other unlawful methods." Article 68 of the Provisions of the Supreme People's Court on Evidence in Civil Litigation stipulates, "Evidence obtained by methods that infringe upon the lawful rights and interests of others or violate legal prohibitions cannot be used as the basis for determining the facts of a case." The legal provisions can be understood as:The evidence collector shall not obtain a cell phone illegally by illegal search, seizure or without the consent of the cell phone holder to obtain SMS records; shall not obtain evidence by methods of illegal intrusion into the cell phone system of others; cell phone text message evidence to be collected by lawful personnel to provide, do not have the legal status of the person found cell phone text message evidence can be applied to the public security and judicial organs to collect or inform the party concerned to collect;. If the evidence is provided by a third party, the third party shall issue a document or digital signature that guarantees that the evidence will always remain in its original state since it is generated or received and that the person voluntarily provides the evidence; when requesting a certain piece of evidence from a short message service provider, it shall strictly abide by the non-disclosure agreement and terms of service signed with the customer and shall not disclose the user's personal information arbitrarily, and even more shall not arbitrarily steal other people's private materials and confidential information in the name of litigation needs. Confidential information. Where the illegal means of obtaining cell phone text messages shall not be used as the basis of the case, should be excluded, such as the use of means of collection in violation of the provisions of the law need to be held criminally liable, should be held criminally liable for the relevant personnel. In addition, on the collection of cell phone text messages as evidence, I - I think there can be the following kinds: 1 collection of evidence of cell phone text messages together with the storage of the evidence of the electronic information equipment (including cell phones, computers, etc.) or electronic information media (such as cell phone cards, hard disk, etc.) with the collection of 2 collection of the main body of the specific cell phone text messages forwarded to a special cell phone and stored in the phone, and recorded information recorded in the phone. The collecting subject collects the SMS by forwarding the SMS to a special mobile phone and storing it in the mobile phone, and records the sender, recipient, time of sending, SMS service center number and other relevant information of the original SMS in the recording data.3 The collecting subject collects the SMS by storing the SMS in a special computer with the help of a certain cell phone software, and records the information relating to the generation and transmission of the SMS that is not stored in the computer in the recording data.4 The collecting subject collects the SMS by using other electronic information media that can reproduce the specific electronic information, or electronic information media (such as a mobile phone card). Collected by way of reproducing the evidence of the cell phone text message using other appropriate technology that can reproduce the specific electronic information. (3) The content and legality of cell phone text messages as evidence. A party to the content of cell phone text messages and senders have objections, cell phone text messages as evidence in the content and on the determination of a great deal of difficulty, this time it is necessary to SMS service providers. Generally speaking, the main need for SMS service providers as a third party to prove the attribution of short messages. Article 7 of the Telecommunications Regulations stipulates that "the telecommunications market adopts access authorization", therefore, only the SMS service providers hold some necessary technology according to the law, so only they can be in a position to legally obtain and save customer information. However, none of the laws in China, including the Telecommunications Regulations, stipulate the obligation of SMS service providers to provide relevant information to third parties outside the telecommunication service contract, which makes it difficult to obtain information from the SMS service providers. In my opinion, the behavior of SMS service providers should be regulated as soon as possible in the form of judicial interpretation or administrative regulations, so that they have the obligation to provide evidence when necessary.Two, cell phone text message proof
Evidence of the power of proof is also known as the value of evidence, refers to the evidence in the determination of the fact that the force of the role of the evidence, that is, the evidence for the adjudicator to form the evidence of the influence of the heart, including the credibility of the evidence and the narrower sense of the proof of the power of the two aspects. The former refers to set aside the relationship between the evidence and the facts to be proved, whether the evidence itself is worth believing; the latter refers to the relationship with the facts to be proved, whether the evidence can prove the facts to be proved and to what extent to prove the facts to be proved. That is to say that the question of evidence is mainly related to the credibility of the evidence itself and the evaluation of the effectiveness of the evidence. The evaluation here is obviously the evaluation made by the judge in the evidence investigation procedures. (a) cell phone text message evidence of the rules of proof "Supreme People's Court on the evidence of civil litigation," Article 77: the people's court on several evidence of the same fact of the power of proof, can be determined in accordance with the following principles: (a) state organs, social organizations ex officio produced by the official certificate of proof is generally greater than the other documentary evidence; (b) physical evidence, archives, and appraisal conclusions, Physical evidence, archives, appraisal conclusions, or after notarization, registration of documentary evidence, its probative value is generally greater than other documentary evidence, audio-visual materials and witness testimony; (c) the original evidence of the probative value is generally greater than the incoming evidence; (d) the probative value of the direct evidence is generally greater than the circumstantial evidence; (e) witnesses provided by the party with whom they have a close relative or other close relationship with the benefit of the testimony of the witnesses, its probative value is generally less than the other witness testimony. Combined with the cell phone text message evidence, I - the legal provisions of the sub-circumstances to understand the following: Situation one: when the need to cell phone text message of the power of proof and other types of evidence to compare the power of proof, the power of proof of the rules are as follows: 1. Mobile phone text message evidence due to the easy to delete and change, no trace of the characteristics of the evidence as a result of the preservation of the evidence and proof of its existence has a certain degree of difficulty, which makes the preservation and fixation is particularly important. Preservation and fixation is particularly important. According to the relevant provisions of the Civil Procedure Law, in order to prevent the elimination of cell phone text message evidence or later difficult to obtain, the parties can apply for a notary public before the lawsuit for notary preservation, but also in the prosecution of the people's court for preservation; the people's court in the trial of the case, that must be taken to take the preservation of evidence, but also ex officio initiative to take the preservation of evidence; the public security organs in the discovery of illegal text messages, can also be detained for the cell phone. When the public security organs found illegal cell phone text messages, you can also seize the phone for preservation; SMS service providers in their daily work, found illegal cell phone text messages should also be reported to the public security organs, and take measures for preservation. 2. The probative power of direct evidence is generally greater than that of indirect evidence. There is a view that, as electronic evidence is easy to be forged, tampered with, and forgery, tampering does not leave traces, coupled with electronic evidence due to man-made reasons or environmental and technical conditions are prone to error, so the electronic evidence should be classified as indirect evidence. I believe that this is a misinterpretation of the legal nature of electronic evidence. The classification of direct and indirect evidence is whether it can directly prove the main facts of the case of a classification. Electronic evidence is electronic physical evidence, electronic documentary evidence, electronic audio-visual material mixture, in different circumstances, it can appear as direct evidence can also appear as indirect evidence, we should not be easy to destroy and deny its direct proof of the authenticity of the case. I think, electronic evidence can be used as direct evidence, does not exclude the use of indirect evidence, which is determined by the multiple attributes of electronic evidence. Therefore, as one of the electronic evidence in the form of cell phone text message evidence naturally may also become direct evidence. Situation two: when the need to compare the different cell phone text message evidence, the rules of proof are as follows: 1. Notarized cell phone text message evidence is generally greater than the notarized cell phone text message evidence of proof. Based on the special nature of the notary public and the neutral position, our law on the notary evidence obtained by recognizing the authenticity of its predetermination, in addition to evidence to the contrary shall not be overturned. And the notary's predetermination effect certainly applies to the cell phone text message evidence. Therefore, after notarization of cell phone text message evidence of proof is generally greater than the unnotarized cell phone text message evidence of proof. In addition, existing scholars put forward "network justice (CyberNotaryAuthority, CNA)" concept, this form of notarization must use advanced network computer technology, the notary public can directly cell phone short message data content directly from the short message service provider's short message platform to the notary public, in this way directly directly access to the mobile phone short message evidence. In this way directly directly access to the cell phone text messages increase the credibility of authenticity. I - I think that this technology has an optimistic outlook, then it is not lost a good way to preserve the evidence of cell phone text messages, but also greatly improve the proof of cell phone text message evidence. 2. There are other evidence to support the proof of cell phone text message evidence is generally greater than a single cell phone text message evidence. A party only has a cell phone text message evidence to prove its claim, and the other party in addition to the cell phone text message evidence and other evidence to prove its claim, then, the judge will be more inclined to believe that at the same time have a cell phone text message evidence and other evidence of the other party's claim. As a result, the probative value of text message evidence is generally greater than that of a single piece of text message evidence. 3. The original cell phone text message evidence is generally greater than the original evidence can not be verified with the incoming cell phone text message evidence, and is equivalent to its original evidence to verify the incoming cell phone text message evidence. Original cell phone text message evidence shall mean cell phone text message evidence that has been retained in its initial state and has been stored in the electronic information medium of the particular electronic information device (e.g., cell phone, computer, etc.) on which it was initially sent, transmitted, or received. Incoming cell phone text message evidence shall mean cell phone text message evidence generated by copying the original cell phone text message evidence through the appropriate technology capable of reproducing the particular electronic message. As to how to distinguish a cell phone text message evidence is the original evidence or incoming evidence, I - I think can be verified by its storage or display rely on electronic information equipment in the generation, transmission, storage and other relevant information to achieve the purpose of the distinction. 4. Direct cell phone text message evidence is generally greater than the proof of indirect cell phone text message evidence. Where the main facts of the case can be directly proved alone cell phone text message evidence can be called direct cell phone text message evidence. Can not directly prove the main facts of the case alone, must be combined with other evidence to form a chain of evidence to prove the main facts of the case of cell phone text message evidence is indirect cell phone text message evidence. 5. By the unfavorable party to save the evidence of cell phone text message evidence is greater than by a neutral third party to save the evidence of cell phone text message evidence, and by the favorable party to save the evidence of cell phone text message evidence is less than by a neutral third party to save the evidence of cell phone text message evidence. Before the lawsuit is filed, the cell phone text message evidence may be saved in the party's own cell phone, may also be by a neutral third party such as short message service provider to save in its short message platform, these subjects due to the identity of the different, with the case of the different stakes, which leads to their treatment of the evidence is very different. Reasonably speaking, the party will often hide the evidence against themselves, therefore, where a cell phone text message evidence is submitted by the party against it, the reliability of the greater, and even can be directly presumed authenticity. And by the third party custody of the cell phone text message evidence, because of its neutrality and independence, it provides information is generally more objective, impartial, real reliability is higher. Several rules in the above two cases are just some superficial understanding of the author of this article, some of which are introduced with the current legal provisions, some of which are formed in judicial practice, something similar to jurisprudence. The author believes that too many provisions of proof of evidence, "one size fits all" simple mechanical attitude to deal with the complexity of judicial practice, will suffocate the judge's conscience and rationality, is not conducive to the discovery of the truth of the case. Especially for the cell phone text message as the representative of the electronic evidence, the new information technology will refresh the existing situation every day. Therefore, in the cell phone text message rules of proof, I believe that the legislation only need to do some general direction can guide, the rest are left to the judge according to the actual situation and case experience to be discretionary. In fact, in the evidence of proof, countries around the world generally established the principle of free evidence. China's criminal procedure system should also establish the principle of "free conscience", the Supreme People's Court in 2002, "on the evidence of civil litigation," Article 64 provides: "the trial shall be in accordance with the legal procedures, comprehensive and objective examination of evidence, in accordance with the provisions of the law, follow the judge Judges shall, in accordance with legal procedures, comprehensively and objectively examine the evidence, in accordance with the provisions of the law, and in accordance with the professional ethics of judges, use logical reasoning and daily life experience to independently judge whether the evidence has any probative power and the magnitude of the probative power, and to disclose the reasons for and the results of the judgment." This article can be seen as giving judges the freedom of rational adjudication and independent adjudication power, indicating that the free conscience system in civil litigation has a legitimate position. (B) cell phone text message evidence of the confirmation of proof 1. Through the identification of cell phone text message evidence of proof. The existence of cell phone text messaging inherent perishability. Text message is easy due to the improper operation of the cell phone holder or by the interested party maliciously delete the evidence lost; cell phone loss and SIM card damage, or the content of the text message may be maliciously changed by the interested party and other reasons will cause the loss of text message evidence. At the same time, the cell phone text message also exists some technical insecurity: cell phone text message transmission process determines the text message data stream stored in the cell phone service provider's platform when there is a risk of data being changed. In the above case, it involves the judicial appraisal of cell phone SMS. When it comes to forensics, data restoration techniques have to be mentioned. Since cell phone holders often artificially destroy the medium of recorded data or directly delete data related to the facts of the case, in order to restore the authenticity of the data, it is necessary to make use of data repair technology to repair the damaged medium or data. At present, the Electronic Data Repair Center of the National Information Center has officially obtained the qualification of electronic data forensic appraisal issued by the Beijing Municipal Bureau of Justice and established the Electronic Data Forensic Appraisal Center of the National Information Center. Relying on its own advantages and rich experience in data repair technology, this appraisal center improves the reliability and authenticity of electronic evidence while safeguarding the integrity of electronic evidence, and provides the judicial authorities with authentic, reliable and objective electronic data appraisal results. Through the judicial appraisal report of the NIC, the judicial organs can have a comprehensive and profound understanding of the electronic evidence related to the case, as well as the size and degree of the probative power of the electronic evidence, so as to provide an effective basis for the judicial organs to determine the facts. From the legal practice, the judicial appraisal of evidence is a very critical part of the evidence collection process, the final appraisal results can be used as the basis for the judicial organs to determine the facts 2. Through the presumption of cell phone text messaging evidence of the power of proof. According to the author of the type of cell phone, some cell phones have re-modified cell phone text messages and does not leave any "traces" of the function. The recipient can be modified in the cell phone and no trace of the received text messages for modification, and then loaded into the cell phone does not have this function, as a defense for the possibility of text message modification. This makes it difficult to determine the authenticity of the SMS. In this way, the court in the litigation to emphasize the proof of cell phone text messages have not been subjected to any changes is very unrealistic, so the authenticity of this kind of electronic evidence can only be the next best thing. From the advanced experience of foreign countries, the usual practice is not to take the direct way - judicial appraisal to solve, but with the help of indirect way - presumption, self-recognition and recognition and so on to deal with. These indirect ways of recognizing the so-called alternative measures and systems. Among them, the presumption of the most common application, it is also regarded as the adoption of the first law of electronic evidence. Presumption is a judge based on the needs of the function and according to certain rules of thumb, on the basis of the known facts, the inference is related to the litigation needs to prove the existence of another fact of the method, is the judge to determine the facts of logical thinking and reasoning process. The use of factual presumptions to find the facts of a case meets the requirement of proof of facts to be proven in a civil trial - a high degree of conclusiveness. "Covering" means both possible and not necessary, the judge through the examination of evidence, judgment and analysis, to presume the facts of the case, will face the subjective and objective factors of the limitations and constraints of the objective reality of the case is often unrealistic, but also unnecessary, "civil litigation evidence" Article 63 provides that the judge determines that the Evidence can prove the facts of the case rather than objective facts, and based on this to make decisions according to law. Thus, as long as a high degree of cover, from the judge's discretionary point of view, to achieve a considerable inner conviction, you can identify the facts as true, that is, legal facts. 3. Combined with other evidence to determine the power of proof of cell phone text messages. Because most of the evidence of cell phone text messages for indirect evidence, and indirect evidence is indirectly linked to the main facts of the case material, can only corroborate with the case of individual episodes or fragments, and can not directly prove the main facts of the case. But a number of indirect evidence linked, after comprehensive analysis and reasoning, for the identification of the main facts of the case is also a very important role. Therefore, it should be combined with other evidence to determine the effectiveness of its evidence. Specific aspects of the examination include: whether the evidence collection link is complete, whether there are flaws in the form of evidence, and other evidence is contradictory and so on.