Can SMS serve as a written agreement?

Party A and Party B had a child through an extramarital affair. Later, Party A’s wife discovered that the two parties wanted to sever the relationship, and a dispute arose over the child’s custody rights and alimony due to the termination of the cohabitation relationship. After many face-to-face and telephone negotiations, a consensus was basically reached. During the negotiation process, Party A sent Party B the following text messages: 1. Now that we have reached a consensus, based on the text messages, you will receive 3,000 yuan per month without affecting my family. I will go see him when I get the chance. If you can't do it, don't blame me for falling out. 2. I won’t sign the agreement. I have a text message as proof. If I don’t pay three thousand, you can come to see me at home. I pay you and I will not interfere with each other. 3. It is my responsibility to pay child support. Failure to pay will result in retribution. I don’t want to be criticized yet. You should believe me. I have the ability to pay three thousand a month. I also hope that you will not affect my family's life. You should think about how you should live your life. I wish you happiness. 4. And I respect your opinion first. The child will be temporarily under your custody. If I know that he is not living well, I will take him back.

Can it be inferred from the above text messages that the two parties have reached an agreement on the custody and support of the child? Can these text messages be considered a type of written agreement? 1. The legal basis for using mobile phone text messages as evidence

The types of evidence stipulated in the "Civil Procedure Law" include seven types: documentary evidence, physical evidence, audio-visual materials, witness testimony, party statements, appraisal conclusions, and inspection records. The so-called evidence refers to the basis that is collected and reviewed in accordance with legal procedures and can prove the true situation of the case. Mobile phone text messages can be used as evidence as long as they meet the attributes of evidence and can "prove the true circumstances of the case." Can mobile phone text messages be used as evidence, and if so, what is its probative power? The form of evidence that text messages belong to is related to the application of current laws to it, and also involves the issue of the standard for judging its probative power. Text messages are electronic data files. There are many opinions on the dispute over the form of electronic evidence. There are two main ones:

1. Electronic evidence is considered to be audio-visual material. The reason is: both electronic evidence and audio-visual material need to be stored. Use certain equipment to reflect; use certain scientific and technological means to produce, disseminate, identify and perceive; easy to delete and modify; easy to copy.

2. The claim that electronic evidence belongs to documentary evidence is based on the following: electronic evidence and documentary evidence both express central ideas through content; my country’s evidence theory and legislation have expanded documentary evidence to the form of data messages; foreign theories and Legislation also mostly recognizes that electronic evidence is equivalent to documentary evidence.

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 form refers 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 contained therein."

Article 2, Paragraph 2, of the "Electronic Signature Law" stipulates, "Data. "A message is information generated, sent, received or stored by electronic, optical, magnetic or similar means." Article 7 stipulates that "a data message shall not be generated, sent, received or stored solely because it is generated, sent, received or stored by electronic, optical, magnetic or similar means." Stored but refused to be used as evidence. "Article 5 stipulates: "Data messages that meet the following conditions are deemed to meet the original format requirements stipulated by laws and regulations: (1) They can effectively express the content and can be retrieved at any time. Access (2) can reliably ensure that the content remains intact and unaltered from the time of final formation. However, the addition of endorsements to the data message and the changes in form during the data exchange, storage and display will not affect the data message. Integrity. ”

Mobile text messages are texts or pictures that use mobile phones as information dissemination terminals and carriers. Their essence is a flow of data information and belongs to the category of data messages. It can be used as evidence

, so its recorded content can also be recognized as a written carrier.

2. Preservation of mobile phone text message evidence

Due to the small storage capacity of mobile phones and improper user operations, text messages may be destroyed naturally or artificially, and are difficult to reproduce afterwards. . Therefore, it must be fixed in a certain form when collected, before or during litigation, and properly kept so that the court can use it when analyzing and determining the facts of the case.

According to Article 24 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation", methods of inspection and transcript production can be used to fix the content of short messages. For text messages, transcripts can be made; for multimedia messages, photos can be taken or printed online with a computer.

However, during preservation, the numbers of the source and receiving mobile phones of the text messages, as well as the sending and receiving times, should be indicated. If necessary, a detailed text message list should be provided as evidence. During the cross-examination in court, the original mobile phone should be produced for the other party to cross-examine. In addition, notarization can also have a good preservation effect.

3. Review of mobile phone text message evidence

Whether the evidence is admissible depends on whether it is objective, relevant and admissible.

According to the provisions of Article 8 of the "Electronic Signature Law", when reviewing the authenticity of data messages as evidence, factors that should be considered are: "The reliability of the method of generating, storing or transmitting data messages; maintaining the integrity of the content The reliability of sexual methods; the reliability of methods used to identify the sender; and other relevant factors. ”

Based on the easy modification and editing characteristics of mobile phone text messages, their authenticity and reliability as evidence. It is an important basis for its evidentiary power and is also the main aspect of its review. Generally speaking, when accepting evidence, the following aspects are mainly examined: whether the source of the evidence exists objectively; whether there is any possibility of forgery or modification in the time when the short message was sent, the sender, and the network service provider.

Specifically, the main situations that may arise in review practice are: no objection to the content, but objection to the sender and receiver; no objection to the sender and receiver, but objection to the content.

(1) There is no objection to the content, but there is an objection to the sender and receiver.

In this case, generally speaking, it is meaningless to review the content of the text message, because the party has denied that he is the sender and receiver of the text message. In essence, it can be said that he has denied its content, but if there are other exceptions. Possible situations in practice: the owner of the mobile phone lends the mobile phone to others or sends text messages to others after it is stolen, and the other party does not recognize that the mobile phone number belongs to him, etc. The former can be contested based on other evidence, or can be inferred based on certain known facts. The latter is because not all mobile phone numbers currently implement real-name systems, and it is impossible to identify individuals from some numbers, which makes it difficult to identify text message evidence. During review, although presumptions can also be made based on correlative evidence and presumption rules, great certification difficulties may be encountered in actual operations. The author suggests that in the future, a complete real-name system for mobile phone numbers should be implemented. This will bring great judicial convenience to the identification of the source of evidence.

(2) Text messages with no objection to the sender and receiver but objection to the content.

After confirming the recipient and sender, the content should be reviewed. The reason for this is because text messages are not as easy to identify as other evidence. If the content of general documentary evidence has been altered, it can basically be identified. Even if it is difficult for ordinary people to identify, the results of professional appraisal can basically be guaranteed. For text messages, this is not the case. Our country's current judicial appraisal has not yet included new types of evidence such as emails and mobile phone text messages into the scope of appraisal.

According to the types of mobile phones that the author knows, some mobile phones have the function of re-editing and modifying mobile text messages without leaving any "clues". What's more serious is that because the signal of mobile phone text messages and the function of receiving information are all in the SIM card of the mobile phone, that is to say, it is the SIM card that sends and receives information, and the mobile phone only plays the role of medium and carrier. The recipient can completely modify the received text message on a mobile phone that is editable and has no trace of the modification, and then load it into a mobile phone that does not have this function, as a defense against the possibility of modifying the text message. . This makes it difficult to determine the authenticity of his text messages.

In addition, SMS service providers or operators only record the sending and receiving time of each SMS and the mobile phone number of the sender and receiver, but generally do not record its content (although they have the ability to record the content of SMS), so, This may result in the fact that the authenticity of the evidence may not be clear at all. When reviewing its content, some scholars believe that “the judge’s insistence on the plaintiff’s need to prove that the text messages have not been altered in the lawsuit is very unrealistic and even impossible. Therefore, the authenticity of the text messages can only be determined.” "The next best thing". Judging from foreign experience, the usual approach is not to use direct certification - appraisal, but to deal with indirect certification - presumption, self-recognition and confirmation.

The author believes that presumption, as the first criterion for the admission of electronic evidence, can be used based on the internal relationships and connections between the facts of the case, as well as reasonable and general logical relationships when reviewing the credibility and reliability of text message evidence.

4. Judgment of the probative force of mobile phone text messages as evidence

Due to the characteristics of easy modification and leaving no traces, mobile phone text messages are prone to errors due to the influence of network, environment, technology and other aspects. Therefore, generally speaking, mobile phone text messages should be classified as circumstantial evidence. Its greatest feature lies in the probability of its probative power, that is, it can only corroborate individual plots or fragments related to the case. When using it to prove the facts of the case, you should pay attention to:

First of all, there must be a sufficient amount of evidence, and it must form a complete, effective, and tight chain of evidence with other evidence.

Secondly, it must be consistent with other indirect evidence. If there is a contradiction, it can be excluded based on illegal evidence exclusion rules and other methods.

Thirdly, make a comprehensive judgment based on other indirect evidence in the entire case. Specific inspection aspects include: whether the evidence collection process is complete, whether there are flaws in the evidence formation, whether there are conflicts with other evidence, etc.