Can the people's court inquire about the content of short messages in judicial investigation?

1. When trying civil cases, the court has the right to inquire about the call list of specific mobile phones or telephones. Paragraph 1 of Article 65 of the Civil Procedure Law: "The people's court has the right to investigate and collect evidence from relevant units and individuals, and the relevant units and individuals may not refuse." Article 103: "If a unit obligated to assist in the investigation and execution commits any of the following acts, the people's court shall order it to perform its obligation of assistance and may also impose a fine." It can be seen that the law gives the people's court the power to investigate and collect evidence, which is mandatory and must be implemented by any unit. The law does not exclude the court from investigating and collecting evidence from the bill of the communication company. Article 17 of the Supreme People's Court's Several Provisions on Evidence in Civil Litigation: "If one of the following conditions is met, the parties and their agents ad litem may apply to the people's court for investigation and collection of evidence: (1) The evidence applied for investigation and collection belongs to the archival materials kept by the relevant state departments and must be transferred by the people's court ex officio; (two) materials involving state secrets, commercial secrets and personal privacy; (3) Other materials that the parties and their agents ad litem cannot collect by themselves due to objective reasons. " The call list held by the communication department cannot be obtained by the parties (except the owner), which belongs to the scope of court investigation and evidence collection as stipulated in Item (3) of Article 17. Therefore, legally speaking, the court should have the right to conduct an investigation through dialogue, which is also the guarantee for the court to hear the case according to law.

2. 66. Literally, the use of "telecom content" is too large and easy to cause differences. What is the scope of "telecom content"? This is the focus of dispute between the court and the communication company, and neither the State Council nor the Ministry of Information Industry explained it. Modern Chinese Dictionary defines "content" as the essence or meaning contained in things (page 824). Obviously, telecommunications and mobile companies give a literal interpretation of "telecommunications content", that is, all telecommunications-related content, including call lists, is included, and the court has no right to inquire. The author believes that the legislative purpose of this article is about the secret protection of specific content of communication. From the perspective of purpose interpretation, the scope of literal interpretation is too large, which does not conform to the original intention of the regulations and is easy to lead to disputes in practice. "Telecommunication content" should be interpreted restrictively, only referring to the content of telephone conversation or the content transmitted on the Internet. As for the contents specified in the call list, such as the owner's name, owner's address, call number, etc. They are not prohibited and the people's court has the right to inquire.

Third, judging from the rank and effectiveness of the law, the interpretation of the meaning of 66 compositions is invalid. The Civil Procedure Law is formulated by the National People's Congress, which is the basic law, while the Telecommunications Ordinance is formulated by the State Council, which is an administrative regulation and a subsidiary law, and its effect is not as good as that of the Civil Procedure Law. Even if the people's court is excluded according to the literal interpretation of Article 66 made by mobile and telecommunications companies, it is obviously in contradiction with the Civil Procedure Law. According to the provisions of the Legislative Law, when normative documents conflict, the superior law shall be applied. Therefore, the court has the right to investigate and collect evidence from the telecommunications sector, which must cooperate.

Four, the content of the call list, the people's court often plays an important role in the trial and execution of cases. 10 years ago, the telephone was owned by only a few people. Five years ago, the mobile phone was a luxury for ordinary people. With the rapid development of China's economy, they have "flown into the homes of ordinary people" and lost their status symbols. What remains is mainly the dissemination value. Therefore, the clues of the parties and witnesses can often be effectively found from the name, address and telephone number of the other party on the call list. For example, in the above-mentioned divorce case undertaken by the author, if the defendant only has the name of a third party and cannot provide an accurate address, then the telephone number of the third party can be found through the plaintiff's mobile phone call list, and then the telephone list of the third party can be printed out, so it is easy to find her home address and find the third party. For another example, in some execution cases, the executed person escaped, and it is difficult to find traces. Through the telephone list of friends or relatives who have close contact with them, the executed person and his property can often be found, and the effect is wonderful! With the rapid development of modern communication, people in today's society rely more and more on communication tools such as telephone, mobile phone and Internet. In the process of trial and execution, if the people's court can't find the telephone list, it will probably become "blind" and "deaf", which will seriously affect the further development of judicial work.

Five, the court query specific mobile phone or telephone call list, will not affect the freedom of communication and communication secrets. The civil investigation power of the people's court is obviously different from the criminal investigation power of the public security and procuratorial organs. The criminal investigation power of public security (procuratorial) organs includes compulsory measures such as seizing, confiscating and monitoring telephones, and criminal investigation power such as restricting citizens' (legal persons') communication freedom and communication secrets, which directly affects citizens' communication freedom and communication secrets. So strict restrictions are really necessary. The civil investigation power of the people's court is only to investigate and understand the registered business files such as the telephone number, address and telephone use of the parties. It is not to check the contents of telecommunications and monitor calls, and it will not affect or restrict the freedom and privacy of communication of citizens (legal persons). Moreover, after the people's court filed the case, it also conducted investigation and evidence collection according to the Civil Procedure Law and the Supreme People's Court's regulations on evidence in civil proceedings, which is not arbitrary, so the communication company need not worry about it.

Sixth, the problems to be solved urgently.

1, part of the postal law is seriously lagging behind. Because telecom companies and mobile communication companies are separated from postal services, the telecommunications law is still being formulated, and communication companies are still applying the postal law and its implementation rules. Due to the early promulgation of the Postal Law, many provisions have lagged far behind the development needs and even seriously hindered the administration of justice. For example, Article 10 of the Detailed Rules for the Implementation of the Postal Law stipulates: "When the relevant units need to collect and consult postal service files according to law, they must issue written certificates by the public security organs, state security organs, procuratorial organs and people's courts where the postal enterprises are located, setting out the specific postal plan, and go through the formalities with postal enterprises and post and telecommunications administrations at or above the county level." This article requires "public security organs, state security organs, procuratorial organs and people's courts to issue written certificates" where postal enterprises are located, which is purely redundant, because local public security, state security and judicial organs cannot disagree, which will only increase complexity and reduce the efficiency of investigation and evidence collection in different places; As for "going through the formalities in postal enterprises and post and telecommunications administrations at or above the county level", the essence is to set an obligation for the case-handling organs and give the post and telecommunications departments the right to review, which seriously violates the provisions of the three major procedural laws that "the people's courts independently exercise judicial power and the people's procuratorates independently exercise procuratorial power according to law without interference from administrative organs, social organizations and individuals". Of course, article 10 of the detailed rules for implementation is invalid because it conflicts with the law.

2. As the Telecommunications Law has not been promulgated, the Supreme Court has no ability to "judicially interpret" the Telecommunications Regulations of the State Council, and the disputes between the court and telecom enterprises such as China Telecom, China Mobile and China Unicom about Article 66 are difficult to solve. It is suggested that the Supreme People's Court should contact and communicate with the Ministry of Information Industry in time and jointly issue a notice to effectively solve the civil investigation right of the people's court on the summons. At the same time, the Supreme Court should contact the National People's Congress Standing Committee (NPCSC) in time to prevent the Telecommunication Law being formulated from repeating the same mistakes on this issue, so as to solve the problem once and for all.