Guidance on proof of Internet electronic data(II) 

        With the progress of science and technology, people's life and network have become more and more inseparable from electronic goods, and the use of electronic evidence has become more and more frequent. In the previous issue, "legal column" introduced five common electronic evidences, such as SMS, fax, email, web evidence, and electronic chat record. In this issue, it also explained the matters that should be paid attention to when providing evidence for the recordings, wechat and electronic photos that are often used by the public.

Recording

1. Confirmation of validity of recording evidence

(1) the recording object must be the person who makes the call. It is better to call the number registered by the recorded person in the telecommunication or mobile company. If someone does not admit that the recorded person is himself / herself, he / she shall apply for judicial appraisal in time, and the issue of bearing the appraisal cost shall be decided by the court (generally borne by the losing party).

(2) the recording content must completely reflect the content of creditor's rights and obligations or other civil rights and obligations, the more specific the better, the more accurate the better.

(3) the recording shall not be cut, clipped or forged, closely connected before and after, and the content shall not be tampered, with objective authenticity and coherence.

(4) the way of obtaining the sound recording shall be legal, and the evidence obtained in violation of the rights and interests of others or in violation of the law shall not be used as evidence.

(5) the recorded content must reflect the true meaning of the person being recorded. Any evidence obtained by illegal restriction of personal freedom, threat and other means is invalid. Therefore, when recording, the attitude and tone must be kind.

(6) the original carrier shall be left for recording. After recording with a recording pen or mobile phone, it shall be copied to the computer. The recording materials in the recording pen or mobile phone shall not be deleted. If the other party has any objection, the court or the appraisal agency will require to produce the original recording materials. In addition, after the recording is completed, it is required to reorganize the written materials and carve them into CDs to provide the court with reference.

(7) call and record in front of the notary, and the notary office will issue the notarial certificate of evidence preservation. The notarized evidence is stronger than the general evidence, and it can be judged by the court that it has not been spliced, and the notarization cost is not high.

2. How to collect and submit recording evidence?

(1) the recording shall be in a quiet and undisturbed place to obtain better recording effect.

(2) the recording equipment shall be small, easy to hide, long recording time and high sound quality, and the interviewer, recording pen or MP3 with recording function are all available, and it is better to be able to copy.

(3) prepare the evidence collection and the facts that you want the other party to admit, and prepare the content of the conversation as early as possible, including the questions considered in advance and the possible attitude of the other party, as well as how to induce the other party to make a statement.

(4) pay attention to the following points in the way of conversation:

A. in the process, explain the time and place, make clear the identity of the interlocutors of all parties, and try to use the full name when talking, so as to enhance the relevance and credibility of the recording.

B. It is better to corroborate with other evidences.

C. do not involve personal privacy or business secrets irrelevant to the case.

D. focus on the narration, recognition or denial of facts, and don't get involved in the dispute of liability.

E. control the time of the conversation and just talk about the key points.

II. Wechat evidence

1. Wechat record

(1) the text wechat record can be extracted and saved by means of screen capture, photo taking and export.

(2) the meaning expressed in the picture wechat record usually needs the whole chat record and article to help understand. When handling the security notarization, it is necessary to notarize the picture and other records as a whole, and it is not recommended to notarize the picture separately.

(3) the wechat voice call belongs to the electronic data in the evidence. The information is saved in the directory of / Tencent / micromsg / * * / vioce2 ("* *" is the longest directory name) of the SD card. The user identity can be determined by distinguishing and identifying the voice in the voice. However, wechat voice calls can only be finalized if four conditions are met, including: the source must be legal, both parties of the call must be confirmed as the parties of the case, the call time is indeed within the time period of the facts involved, the content of the call is relatively complete, and it can reflect the facts that the parties want to prove.

(4) the video wechat record has the function of intuitively reflecting the facts. Generally, the video taken by the user himself has more proving power. Because the original source of the reproduced or produced video is unknown, the proving power is usually lower than that of the video taken by himself. When handling the notarization of preservation, attention should be paid to the examination of the video formation mode.

2. Requirements of wechat evidence

Wechat records exist in the form of electronic data, with the characteristics of virtual form and carrier dependence. They must meet the requirements of "authenticity", "legality" and "relevance" of evidence. First of all, in terms of authenticity, in addition to submitting the printed copies of chat records, the parties must also show the original mobile phone, or notarize the wechat records to prove their objective authenticity. In terms of legality, electronic evidence must be provided, collected, investigated and verified in accordance with legal procedures in a specific form as prescribed by substantive law. If the evidence involved in the case is critical and the parties cannot provide it, they can apply to the judge for investigation and evidence collection In terms of relevance, including subject relevance and content relevance, the former refers to the relevance between the information carrier of electronic evidence and the parties or other litigation participants, and the latter refers to the relevance between the information content of electronic evidence and the facts of the case.

3. Suggestions on wechat evidence preservation

When the wechat record is formed, evidence preservation must be carried out immediately by shooting video. When shooting, it should be shot at the same time as the wechat record is formed as much as possible, and pay attention to the consistency and integrity. It starts from the first record related to the facts to be verified, and does not interrupt the process until the end of the chat.

(1) pay attention to the formation of own evidence:

A. by inducing the other party to send voice, it can lock the subject qualification of the other party and associate the real identity with the virtual wechat account. Voice messages need not be limited to the protected wechat records. As long as any voice message exists in the account, the specific identity of the account holder can be locked.

B. now that the real name system is applied to the mobile phone, you can associate the mobile phone owner with the wechat account holder by selecting the "add friend" function through wechat and entering the mobile phone number to search. It is recommended to save wechat evidence and video preservation during the process of searching mobile phone number to prevent the other party from unbinding the mobile phone and account in the future, resulting in the irrelevance.

C. Since the wechat red packet cannot display the transfer amount, the wechat transfer function should be used directly and the transfer purpose should be indicated.

(2) pay attention to the preservation of the formed evidence: when using the mobile assistant software, do not clean the wechat files, videos, pictures or voice messages, and use the "one button slimming", "garbage cleaning" and other automatic cleaning functions carefully The wechat records in the synchronous cloud are copied from the original records, which belong to the "transmitted evidence" (the second-hand materials through indirect channels such as others' reporting or copying), and cannot be used as the basis for the final decision alone.

4. Proof of wechat records

All the wechat records shall be screenshot and printed, and the video saved and recorded shall be engraved into CD and submitted together. In addition, the mobile phone used for chatting is the original carrier formed by wechat recording, and the equipment used for shooting is the original carrier formed by video preservation. Therefore, these two original evidences must be presented at the same time when giving evidence in court. Before the court session, the signal condition of the mobile device should be checked to avoid that the evidence cannot be displayed due to the poor network signal.

For the chat records in wechat, the evidence elements that the parties should provide include: first, the process demonstration of logging in our wechat account with terminal equipment to prove the legitimacy of their wechat chat records and the authenticity of their identity. Second, the personal information interface of both sides of the chat, with the help of the characteristics of the wechat can not be changed, and combined with the mobile phone number, head image and other information displayed in the personal information interface, confirms the true identity of both parties. The third is the complete chat record. According to the characteristics that the chat record can only be deleted and cannot be added in the terminal, the complete chat information in the wechat users of both sides is compared to verify the integrity and authenticity of the information.

III. electronic photos

When collecting and saving digital photos, we should pay attention to the quality of the image, try to ensure the clarity of the picture and the high level of the elements, and when shooting, we should keep the picture close to each other. The "far" picture can reflect the overall scene environment, and the "near" picture can reflect the local scene. In addition, do not change the original image format and content easily. When using the software and hardware products of the electronic evidence preservation organization of the third party manufacturer for evidence preservation, it is better to record the information of photographers, relevant personnel on site, date, etc. synchronously after shooting, and preserve them as soon as possible. It is better for digital photos to form a chain of evidence with other evidences, and strengthen the proving power through mutual confirmation.