How to ensure that chat records and transfer records become powerful evidence in court
Niu Jiawen, President of the Second Civil Division of Shunyi Court Wang Wanxuan, Judge of the Second Civil Division of Shunyi Court
With the development of Internet technology, communication applications such as mobile phone text messaging, WeChat chat, email, and Alipay have long become indispensable tools in our lives and work.
In recent years, relevant electronic data has been widely used in civil and commercial cases, and has gradually become the "king of evidence".
However, in judicial practice, there are often some misunderstandings in the proof of this type of evidence. For example, simply intercepting a few pictures and submitting them as evidence makes it difficult for the court to grasp the strength of the proof when hearing a case. How to review and confirm electronic evidence has become a judicial issue. A big problem.
Case number one
How can I prove that "she is her" with only a pseudonym in the IOU?
Gao and Lu are fellow villagers and came to Beijing to work together five years ago. They usually call each other "Xiaomei" and "Xiaoan" by their nicknames.
Lu borrowed 7000 yuan from Gao and wrote an IOU to Gao, but the IOU was written with their nicknames and the ID number was not stated.
After Lu disappeared, Gao reluctantly filed a lawsuit in the court, requesting Lu to return the loan.
However, in the IOU submitted by Gao, the content read: "Xiao'an borrowed 7000 yuan from Xiaomei." The full names of Gao and Lu were not displayed, and it could not be proved that the borrower was Lu.
During the trial, after communicating with Gao, the judge found that Gao only had a primary school education. He dropped out of school to work in Beijing in order to relieve the financial pressure of his family. He was not conscious of keeping evidence.
In addition, because his family is poor, 7,000 yuan is the family's living expenses for several months, which is a huge sum of money for him.
Therefore, Gao was forced to sue Lu and seek judicial protection when he was looking for Lu without any results.
After patiently talking, the judge guided Gao step by step to recall the entire process of borrowing facts, looking for clues of evidence that might be left behind.
Gao remembered that the loan was paid through Alipay transfer, and submitted the Alipay transfer record to the court, but the Alipay account only showed Lu's username and nickname, and did not display Lu's full name.
In order to ascertain the facts of the case, the court sent an agreement inquiry letter to the Alipay operator to retrieve the real-name authentication information of the Alipay payee.
The real-name authentication information in the operator’s reply letter showed that the payee who received Gao’s transfer was Lu.
The court concluded that, based on the IOU submitted by Gao and combined with Alipay’s transfer records, it can be determined that the person who borrowed from Gao is the defendant Lu, so the court supported Gao’s claim.
Judge's statement
According to Wang Wanxuan, a judge of the Second Civil Division of Beijing Shunyi Court, when individual citizens borrow money, the IOU issued by the borrower is often irregular, but it basically states the name of the borrower and the ID card and the amount of the loan.
What is special about this case is that only the nickname of the borrower was written, but the full name of the borrower was not displayed. When the defendant could not be contacted, it was impossible to prove that "Xiao An" was the borrower Lu.
Through Alipay's real-name authentication information, it was proved that Lu was the person who accepted the loan, thus supporting Gao's litigation request.
The judge reminded that when individual citizens make loans to others, they must ask the borrower to show the original ID, then keep a copy of the borrower’s ID, and ask the borrower to write an IOU.
In the debit note, the full name and ID number of the borrower and the lender must be clearly written in the ID card, and the uppercase and lowercase numbers of the loan amount should be written at the same time, and there should be no spaces or line breaks between the uppercase and lowercase numbers of the loan amount.
The payment of the loan is best done through bank, WeChat or Alipay transfer, and the remarks indicate that it is a loan.
No matter how well the two parties communicate before borrowing, both parties will not be able to control the changes in the situation afterwards. Only by doing the preliminary work can they protect their legitimate rights and interests to the utmost extent.
Case two
The chat log is not useful only by taking screenshots as evidence
Zhou suggested that he partnered with Lei to buy a second-hand car. After both parties paid part of the money to purchase the vehicle, Lei drove the car away and sold it by himself.
When Zhou wanted to meet with Lei to discuss car sales, Lei did not meet with Zhou for various reasons, and sometimes no one answered the phone.
After Zhou asked for the remaining balance several times, Lei transferred 2,000 yuan to Zhou and his whereabouts were unknown.
Zhou and Lei have communicated many times via phone and WeChat, and Lei agreed to give Zhou another 8,500 yuan.
Therefore, Zhou sued the court and asked Lei to repay 8,500 yuan immediately.
Lei acknowledged that the two parties used to resell a used car in a partnership, but said that the two parties had discussed in advance that each person would pay a certain amount of transfer fees, listing fees, etc., but did not pay a certain cent in the week, so Lei did not admit that he owed Zhou some money.
Since the two parties have never signed a written agreement, the communication about partnership reselling vehicles is through telephone and WeChat, so the evidence that Zhou submitted to the court is a screenshot of WeChat chat records and call recordings.
However, the WeChat chat record is not complete. This Zhou explained that the two parties chatted on WeChat very frequently, and not all of them were related to the partnership, so he only submitted part of the content that could directly prove the facts of the case.
In order to ascertain the facts of all cases, the court asked Zhou to log in to WeChat during the trial, show all WeChat chat records in chronological order, and play all the saved call recordings.
According to call recordings and WeChat chat records, it can be shown that Zhou's statement is true, but incomplete.
WeChat chat records and call recordings can prove that Lei gave Zhou 2,000 yuan after the vehicle was sold, and then agreed to give Zhou another 8,500 yuan, but it has not been honored since.
However, after verifying all the evidence, it was shown that Zhou, in the process of repeatedly demanding the remaining arrears, offered to agree that Lei would give 1,500 yuan less, and only 7,000 yuan.
The court held that when the partnership is terminated, if there is a written agreement on the treatment of the partnership property, it shall be handled according to the agreement; if there is no written agreement and the negotiation fails, if the capital contributions of the partners are equal, the majority opinion shall be considered and handled as appropriate; If the amount of capital contribution is not equal, it may be dealt with according to the opinion of the partner whose capital contribution accounted for more of the total partnership amount, but the interests of other partners must be protected.
The evidence provided by Zhou can prove the handling of follow-up issues regarding the purchase of vehicles in partnership. During the negotiation between the two parties, Lei once agreed to pay Zhou 8,500 yuan. Later, Zhou agreed that Lei would pay 1,500 yuan less, and both parties should perform as agreed.
Therefore, the court determined that the amount of money that Lei should pay was 7,000 yuan.
In the end, the court ruled that Lei should pay 7,000 yuan to Zhou.
Judge's statement
Wang Wanxuan said that under normal circumstances, individual citizens do business together or conduct other business activities. Although there is no guarantee that written evidence will be formed and retained at every step, a basic written agreement will generally be signed at the beginning of the business.
In this case, the two parties communicated on partnership matters entirely through telephone and WeChat, and no written agreement was signed.
When there is a dispute between the two parties, they will fall into the embarrassing situation of "talking without proof".
In this case, Zhou Mou, after repeated unsuccessful claims for arrears, recorded all the calls during the subsequent telephone communication between the two parties, and also kept all the WeChat chat records.
Based on the above evidence, the court determined that the two parties reached an agreement on the distribution of partnership property after the dissolution of the partnership, and made a judgment accordingly.
The judge reminded that the original evidence must be submitted when presenting evidence, and the original evidence must be true and complete.
As far as WeChat chat evidence is concerned, the original refers to the chat record displayed after logging in to WeChat. The screenshot of the chat record does not belong to the category of "original" in the legal sense.
Therefore, for future litigation needs, you cannot just keep a screenshot of the chat history and then delete the chat history. Instead, you should keep all the chat content in the WeChat program to have the effect of evidence.
Judge reminder
Take WeChat as an example to explain how to submit electronic evidence
Considering that the contents of electronic data are easily tampered with, the submission of electronic evidence must meet certain formal requirements in order to break the authenticity and relevance barriers of its use as evidence.
The Shunyi Court sorted out and recommended the four types of commonly used electronic data, such as WeChat, Alipay, SMS, and email, to help litigants to reasonably use Internet electronic data evidence in the process of civil and commercial litigation, cross-examination and authentication.
If a party submits electronic evidence, it is recommended to fix the content by taking screenshots, taking photos or audio recordings, video recordings, etc., and number the paper printouts of the corresponding pictures, audio and video storage media (U disk, CD-ROM) and submit them to the court.
1. If WeChat and Alipay records are provided as evidence, it is recommended to fix a screenshot of the user's personal information interface, including the person and the other party.
2. If the electronic evidence contains audio, it is recommended to submit a text text consistent with the audio content. The text text cannot be concise, and the key content can be highlighted in bold.
3. If the electronic evidence contains a video, it is recommended to submit the storage carrier after the backup video. The carrier should be able to be opened normally on the general playback device.
4. If the electronic evidence contains pictures and text files, it is recommended to submit the printouts of the pictures and text files. If the pictures are printed in color, it is better to restore the scene. Color printing is required.
5. The equipment for displaying electronic evidence shall be provided by the parties themselves.
Commonly used equipment mainly includes computers, projectors, speakers, etc.
Take the way of showing WeChat evidence as an example:
1. The account holder logs in to WeChat and displays the name of the account used to log in. A screenshot of the login page can be used as the first page of this evidence.
2. Display the holder’s personal information interface and take a screenshot, which can be used as the second page of this evidence.
3. Find the other party's user in the address book and click to view the screenshot of personal information, which can be used as the third page of this evidence, displaying the remark name, nickname, WeChat ID, mobile phone number, etc. that have identity pointing to the content displayed on the personal information interface.
4. Click "Send Message" on the personal information page to enter the communication dialog box. The information generated during the conversation, especially important text files, pictures, audios, videos, transfers or red envelope content, is recommended to click to open the display, and take a screenshot as Page 4 of this evidence.
When displaying the transfer information, you should click on the chat details in the communication dialog-view transfer records, and display the transfer payment information.
When submitting evidence, important content can be specially marked to facilitate the judge's review and the counterparty's cross-examination.
The relevant content will be displayed one by one during the trial.
Proof of authenticity and these precautions
Niu Jiawen, President of the Second Civil Division of the Shunyi Court, pointed out that the above-mentioned methods of proof of evidence such as WeChat, Alipay, e-mail and SMS are based on the original carrier of the relevant electronic data.
Due to the uncertainty of the litigation period, the original carrier may suffer risks such as data loss or deletion. When preparing litigation materials, it is recommended that the parties apply to the notary office for notarization of the electronic evidence.
For electronic data that has not been notarized by a notary authority, the court will generally guide the parties to notarize according to their powers, and explain that the electronic evidence that has not been notarized may have a litigation risk that cannot be accepted by the court.
In the process of litigation, even if the relevant electronic evidence is submitted in accordance with the above specifications, but the parties do not recognize the identity of the parties in the communication and the existing evidence is insufficient to prove it, unless the parties can submit other evidence to prove their identity to be corroborated, otherwise The user identity claimed by the parties will not be accepted.
Regarding the identification of the Alipay user subject, the user’s personal information shows the real name that has been verified by the real name and is consistent with the user information claimed by the party concerned, which can verify the authenticity of the identity information.
Regarding the authenticity of the WeChat user subject, according to the relevant provisions of the Civil Procedure Law, evidence that the parties cannot collect on their own due to objective reasons can apply to be retrieved by the people's court.
Before the parties apply to the court to retrieve WeChat evidence, they must clarify what needs to be investigated: WeChat users, WeChat official accounts, and WeChat applet registration information should be retrieved from Shenzhen Tencent Computer System Co., Ltd.; account transfer records related to WeChat wallets Retrieved from Tenpay Payment Technology Co., Ltd.
It is particularly important to note that for WeChat chat records, since Tencent cannot provide users’ chat data, the court cannot retrieve them ex officio.
Text/Reporter Song Xia