Can Fetion chat records and mobile phone text messages be used as evidence?

Evidence refers to the basis that can be collected, examined and recognized according to legal procedures and can prove the facts of a case. Evidence is the basis for the people's court to find out the facts of the case and make a correct judgment. According to China's theory and laws, the admissibility criteria of traditional evidence can usually be summarized as objectivity criteria, relevance criteria and legality criteria. When judging the admissibility of mobile phone short messages as evidence, we should still follow the standards of objectivity, relevance and legality of evidence.

1. Objectivity of short messages. The objectivity of evidence means that the evidence facts must accompany the occurrence and development of the case, regardless of people's subjective will, they are left over and do not exist. Although some people question the objectivity of mobile phone information based on its modifiability and erasability, the author believes that mobile phone short message users express their thoughts and meanings in the form of words and graphics, which are converted into digital signals and transmitted to the other party's mobile phone through the communication company's network. Then, the content displayed on the other party's mobile phone itself is an intuitive and real objective fact, which is not transferred by people's will (including modification of course).

2. Relevance of SMS. The relevance of evidence means that evidence must have some connection with the facts of the case, so it is of practical significance to prove the case. A mobile phone number represents its user. Because SMS can only be sent and received in two specific mobile phone numbers, that is, between two specific mobile phone users. If the behavior of sending and receiving short messages between mobile phone users is related to the facts of the case, it is related.

3. The legitimacy of SMS. The legality of evidence is also called the admissibility of evidence. It means that evidence can only be collected, fixed, preserved and appraised by judges, prosecutors and investigators according to legal procedures. The legitimacy standard of mobile phone short message usually conforms to the traditional evidence standard, that is, legal subject, legal form and legal procedure. As long as the procedures for providing, collecting and saving SMS evidence comply with the relevant provisions of the law, it is legal. Article 2 of the Electronic Signature Law of People's Republic of China (PRC) refers to the electronic signature contained in the data message, accompanied by data used to identify the identity of the signer and show that the signer approves the content. Data message refers to information generated, sent, received or stored by electronic, optical, magnetic or similar means. This law provides a legal basis for SMS to become evidence.

To sum up, I think the writing and dissemination of short messages is an ideographic act, and short messages are a specific legal way to implement legal acts in written form, which can be used as evidence in litigation.

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What kind of evidence does SMS belong to?

Article 63 of China's Civil Procedure Law stipulates: "There are the following types of evidence: (1) documentary evidence; (2) Physical evidence; (3) Audio-visual materials; (4) Testimony of witnesses; (5) statements of the parties; (6) Evaluation conclusion; (7) Records of the inquest. " There is no clear regulation, I think it should belong to the category of documentary evidence. Documentary evidence refers to everything that can find out the true situation of a case according to the expressed thoughts and recorded contents. There are two specific reasons: (1) Documentary evidence is a document or other written material that proves a case with words, symbols, graphics and other concepts or recorded contents. Mobile phone short messages also reflect the case with their expressed thoughts and recorded contents; (2) From the legislative point of view, Article 11 of the Contract Law has clearly stipulated: "Written form refers to contracts, letters and data messages (including telegrams, telephones, faxes, electronic data interchange and emails) and other forms that can tangibly express the contents contained."

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Security problems of mobile phone short messages

The so-called evidence preservation refers to the behavior of the people's court to take measures to fix and protect the evidence at the request of the participants or ex officio when the evidence may be lost or difficult to obtain later.

Because SMS is easy to be lost, it is very important to ensure the security of SMS. 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. In terms of security, we should pay attention to the following points: first, indicate the mobile phone number and time of sending and receiving SMS. Second, when necessary, the parties should be ordered to provide the corresponding short message list as evidence. Third, if there is any objection to the authenticity of its contents, and the authenticity cannot be confirmed at the moment, the SIM card of its mobile phone can be left as a part of the notarized materials after making the transcript materials.

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SMS censorship as evidence

Generally speaking, when reviewing, you will encounter such a situation:

No objection to the content, but objection to the sender.

For example, the owner of the mobile phone lends it to others or sends a text message after being stolen, or denies that the mobile phone number belongs to him. For the former, we can use other evidence to confront and infer other facts first. For the latter, we need to use other evidence, such as witness testimony. In addition, as far as I know, the current communication company has not fully implemented the real-name registration system for mobile phone SIM cards, and vendors selling black cards can be seen everywhere in the streets.

2. Have no objection to the sender, but have objection to the content.

In fact, some mobile phones have this function: it can modify and edit the information in the inbox without leaving a trace.

But more seriously, because the signal of short message and the function of receiving information are in the SIM card of the mobile phone, that is to say, the SIM card is used to send and receive information, and the mobile phone only plays the role of medium and carrier. The receiver can completely modify the received short message in the editable seamless mobile phone, and then load it into the mobile phone without this function, so it is still difficult to determine the authenticity of its short message. Pay special attention to review. If necessary, we should turn to the communication company or ask professionals to make an evaluation.

Due to the above reasons or other reasons, it is impossible to notarize mobile phone short messages at present. This also brings great difficulties to the examination of evidence preservation. We also expect legislators to strengthen legislation in this regard.