Can SMS be used as the basis for filing a case of "job occupation"

Text messages can be used as evidence, there is such a situation!

[Case] Wang and the former husband and wife agreed to divorce on April 25, 2007. The divorce agreement stipulates that the house belongs to all and the children are raised by the king. Compensate Wang for the purchase price and pay a one-time child support fee of 65,438 yuan+800,000 yuan, and Wang should assist in the house transfer procedures. On the day of the agreed divorce, Wang was paid 50,000 yuan, and 65,438+300,000 yuan was still owed. When Wang was asked to assist in the transfer of the house, Wang asked for an additional 70,000 yuan of support before he cooperated with the transfer of the house, that is, he should also pay 200,000 yuan. The opinion was sent by Wang to his mobile phone by SMS. In order to successfully handle the house transfer procedures, I agreed to Wang's request and gave Wang an iou of 200,000 yuan, but did not specify the nature of the arrears. Wang sued the court with an iou, claiming to borrow money from him.

In this case, there is only one debt, and there is no doubt that Wang should be paid 200,000 yuan. However, if the composition of this 200,000 yuan is not clear, then Wang is likely to claim 1.3 million yuan with the divorce agreement after getting this 200,000 yuan. Therefore, it is the key to understand the composition of this 200,000 yuan IOU. This lawyer represented Chen Mou's lawsuit, submitted SMS evidence to the court, and expressed his opinion. The court adopted his opinion, and finally made clear the nature of the debt in the document.

This case illustrates a problem: SMS can be used as evidence.

First, the legal basis of SMS as evidence

The types of evidence stipulated in the Civil Procedure Law include: documentary evidence, material evidence, audio-visual materials, witness testimony, statements of the parties, expert conclusions, and transcripts of inspection. The so-called evidence refers to the basis that can be collected, examined and recognized according to legal procedures to prove the true situation of the case. SMS can be used as evidence as long as it conforms to the nature of evidence and can "prove the true situation of the case".

Article 10 of the Contract Law stipulates: "The parties may conclude a contract in written form, oral form and other forms." Article 11 stipulates: "Written forms refer to contracts, letters and data messages (including telegrams, telexes, faxes, electronic data interchange and e-mails) and other forms that can tangibly express the content."

Paragraph 2 of Article 2 of the Electronic Signature Law stipulates that "a data message is information generated, sent, received or stored by electronic, optical, magnetic or similar means." Article 7 stipulates: "A data message shall not be refused to be used as evidence just because it was generated, sent, received or stored by electronic, optical, magnetic or similar means." Article 5 stipulates: "A data message that meets the following conditions shall be deemed to meet the requirements of the original form stipulated by laws and regulations: (1) It can effectively express the contents it contains and can be retrieved and consulted at any time; (2) It can reliably ensure that the content remains complete and unchanged from the time it is finally formed. However, adding endorsements to data messages and changing forms during data exchange, storage and disclosure will not affect the integrity of data messages. "

Mobile phone short message is a text or picture with mobile phone as the terminal and information dissemination carrier. Its essence is a kind of data information flow, which belongs to the category of data message. Can be used as evidence.

Second, the preservation of mobile phone short message evidence

Due to the small storage capacity of mobile phone and improper operation by users, short messages may disappear naturally or be destroyed artificially, and it is difficult to reproduce afterwards. Therefore, it must be fixed in a certain form at the time of collection, before litigation or during litigation, and kept properly so that the court can use it when analyzing and determining the facts of the case.

According to the provisions of Article 24 of the Provisions of the Supreme People's Court on Evidence in Civil Proceedings, the contents of short messages can be fixed by means of inquests, transcripts, etc. For short messages, you can take notes; For MMS, you can take photos or print them online by computer. However, in the process of confidentiality, the numbers of the source mobile phone and the receiving mobile phone and the time of sending and receiving should be marked, and a detailed list of short messages should be provided as evidence when necessary. When conducting cross-examination in court, the original mobile phone shall be presented for cross-examination. In addition, notarization can also play a good preservation effect.

Third, the review of mobile phone short message evidence

The admissibility of evidence depends on its objectivity, relevance and admissibility.

According to the provisions of Article 8 of the Electronic Signature Law, the factors that should be considered in examining the authenticity of data messages as evidence are: "the reliability of the method of generating, storing or transmitting data messages; Reliability of methods for maintaining content integrity; Reliability of the method used to identify the sender; Other related factors. "

This paper mainly investigates the following aspects: whether the source exists objectively, when the short message was formed, the sender and the network service provider, and whether there is the possibility of forgery or modification. When examining the relationship between SMS and the litigant's claim, we should find out whether the facts or behaviors reflected by SMS are objectively related to the case.