Cases of laws and regulations on short message service

Introduction:

From June 5438 to October 2004, Mr. Yang met the girl Han. On August 27 of the same year, Han sent a text message to Mr. Yang to borrow money from him for emergency. The text message said, "I need 5000 yuan. I just returned to Beijing for eye surgery and can't go out. Please remit it to my card. " Mr. Yang immediately remitted the money to Han. More than a week later, Mr. Yang received a short message from Han again and lent him 6000 yuan. Because they were all short messages, Mr. Yang didn't want to borrow money for the second remittance. Since then, because Han has never mentioned the loan, he borrowed from Mr. Yang. Mr. Yang was wary and urged Han. However, the claim was unsuccessful, so he sued the Haidian court, demanding that Han return its 1 1 000 yuan, and submitted two bank remittance slips and two deposit certificates. But Han said that Mr. Yang owed it to her before he survived.

Therefore, during the trial, in the evidence submitted to the court, Mr. Yang not only provided two bank draft deposit certificates, but also submitted a Philips mobile phone with the number "1391166xxxxx", in which some short messages were recorded. For example: August 27th, 2004, 15:05, and then borrow some money to help. August 27th, 2004 15: 13 How can you be so real! I need 5 thousand, no more, no less. Besides, I just returned to Beijing for eye surgery yesterday, and now I can't go out and see anyone. If you support me, you have to remit the money to my card! Wait for the content of 18 SMS sent by Han.

After verification by the judge, the mobile phone number provided by Mr. Yang for sending text messages was dialed by Han himself. Han himself admitted that he started using this mobile phone number in July and August last year.

The court ruled that:

After trial, the court held that, according to the relevant provisions on recognition in the Supreme People's Court's Several Provisions on Evidence in Civil Proceedings, whether the mobile phone number "1391173xxxxx" was used by Ms. Han was clearly stated in the first trial that Ms. Han had entrusted an agent to withdraw her recognition before the end of the second court debate, but the change was not recognized by Mr. Yang. There is not enough evidence to prove that he confessed under coercion or serious misunderstanding. The plaintiff, Mr. Yang, no longer bears the burden of proof on whether the mobile phone number was used by the defendant, but the defendant should bear the burden of proof on whether the mobile phone was not used, and the defendant failed to provide relevant evidence, so the court confirmed that the number was used by Ms. Han.

According to the provisions of People's Republic of China (PRC) Electronic Signature Law, which came into effect on April 1 2005, electronic signature refers to the data contained in the data message in electronic form and accompanied by the data used to identify 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. The forms of SMS are electronic signature and data message. At the same time, SMS can effectively express the content and can be retrieved and used at any time; Be able to identify the sender and receiver of data message and the time of sending and receiving. The reliability of the method of generating, storing and transmitting data messages provided by Mr. Yang in our hospital; Reliability of methods for maintaining content integrity; By investigating the reliability of the method used to identify the sender, the authenticity of the mobile phone short message as evidence can be determined. According to the relevant provisions of the rules of evidence, audio and video materials and data messages can be used as evidence, but data messages can be directly used as evidence for ascertaining facts and should be supported by other written evidence.

It can be seen from the short message sent by Ms. Han to Mr. Yang that on August 27, 2004, Ms. Han asked for a loan of 5,000 yuan and asked Mr. Yang to remit the money to his card. On August 29th, 2004, Ms. Han asked Mr. Yang whether the money had been deposited. On August 29th, 2004, the personal business certificate of China Industrial and Commercial Bank showed that Mr. Yang remitted 5000 yuan to Ms. Han. On September 7, 2004, Ms. Han borrowed 6000 yuan from Mr. Yang. On August 29th, 2004, Ms. Han asked whether the money had been remitted. On September 8, 2004, the personal business voucher of China Industrial and Commercial Bank showed that Mr. Yang remitted 6000 yuan to Ms. Han. From September 5, 2004 to June 5, 2005, Ms. Han promised to repay Mr. Yang many times.

The amount and time stated in the SMS sent by Mr. Yang through the number used by Ms. Han are consistent with the amount and time of remittance from Mr. Yang to Ms. Han reflected in the personal business voucher of China Industrial and Commercial Bank, and the SMS also contains Ms. Han's repayment intention. The two pieces of evidence confirm each other, which can confirm the fact that Ms. Han borrowed money from Mr. Yang. Accordingly, the mobile phone short message provided by Mr. Wang was adopted by our hospital as the true and effective evidence to prove the facts, which supported Mr. Yang's litigation request for Ms. Han to repay the loan.

Main problems:

1. It can be seen from the judge's judgment on this case that the judge cited the provisions of the Electronic Signature Law. Do you think SMS can be used as evidence in this case?

2. How to determine the legal effect of SMS?

3. Before the promulgation of the Electronic Signature Law, did you know of any relevant cases?

4. What is the significance of this case?

Simple answer:

In this case, the judge cited the relevant provisions of the Electronic Signature Law to judge the case, which I think is appropriate. According to the case description and electronic signature law, the mobile phone short message in this case can be used as evidence.

The core content of electronic signature law is to give data message, electronic signature and electronic authentication corresponding legal status. The concept of data message is very broad, which basically covers all documents, records, documents and contracts that exist in electronic form. We can understand it as the basic form of all electronic information in the information age. Before the promulgation and implementation of the Electronic Signature Law, we lacked the most basic provisions on the legal effect of data messages, such as whether data messages meet the requirements of written form, whether they can be used as originals, and what kind of evidence effect they have under what circumstances, which is very unfavorable to the development of China's information industry. It can even be said that due to the lack of provisions on the basic legal effect of data messages, the information society we have built lacks the most basic legal protection.

According to the provisions of Article 8 of China's 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. " That is to say, to examine the authenticity of data messages as evidence, we should mainly consider the following aspects: the operator of the system, the operating procedures, the security and reliability of the information system itself, and so on. For example, whether the system transmitting data messages has considerable stability, how likely it is to be illegally invaded or tampered with, whether it operates strictly according to the required procedures, whether it can effectively identify the sender, and so on.

In this case, for the main evidence-SMS, the judge examined the authenticity of the evidence according to Article 8 of the Electronic Signature Law and related regulations. Under the condition that the information source, sending time, transmission system are basically reliable and the file content is basically complete, the judge determined the evidential force of these SMS, and there was no evidence to the contrary to deny the probative force of these evidences. I think the applicable law is appropriate and accurate, and the judgment method is scientific and reasonable, which meets the requirements of the Electronic Signature Law.

Before the introduction of electronic signature law, there were many similar cases, mainly focusing on whether e-mail can be used as evidence. Due to the lack of direct legal provisions, the Shanghai High Court has also issued relevant explanations. With the promulgation of the Electronic Signature Law, this situation has been fundamentally changed.

According to relevant reports, this case is the first case decided by the court according to the electronic signature law after the implementation of the electronic signature law in China, which is of great significance. It means that China's electronic signature law has really begun to enter the judicial process, and the legal effect of data messages, electronic signatures and electronic authentication has been fundamentally guaranteed. Through the implementation of the electronic signature law, basically all activities related to informatization have their own corresponding judgment standards at the legal level.