What is the basis of SMS as evidence in this case?

Text messages can be used as evidence. According to Item 5 of Article 63 of the Civil Procedure Law, data messages belong to one kind of evidence, and mobile phone short messages belong to one kind of data messages, so mobile phone short messages can be used as evidence. However, SMS as evidence has its inherent shortcomings, because the registrant of sim card is not necessarily the same person as the actual user, and the content of SMS can be edited, so SMS as evidence must be cross-examined in court. In order to ensure the probative power of SMS as evidence, the best way is to preserve the evidence by notarization. To do a good job of notarization evidence preservation of mobile phone short messages, we should start with the sending and receiving of short messages. Mobile phone short messages preserved by notarized evidence have legal probative force.

Legal objectivity:

Spouses can apply for divorce if they find that the person next to them is having an affair through SMS, but as evidence of adultery, it is more difficult. Legally, the so-called adultery refers to a married person having sex with a non-spouse, which is difficult to prove only by the content of mobile phone text messages. Even if the text message on the mobile phone directly says "We slept last night", it can't prove that both parties who sent and received the text message had sex, because both parties can say that it was purely a joke, or even that the mobile phone was stolen, unless they are willing to admit it, that's another matter. Although it is difficult to prove that the spouse has committed adultery through short messages, the parties can take "unreasonable behavior of the spouse" as the reason for divorce. There are many reasons for filing for divorce. In divorce cases, it can be divided into "controversial" and "uncontroversial". She said: "If the parties suspect that the spouse is having an affair from the spouse's SMS, and the spouse is willing to admit it, it means that the reasons for divorce are not controversial, then the content of SMS can be accepted in the divorce application." Because the new marriage law stipulates that no fault can claim compensation from the wrong party, and once the extramarital affair is determined by the court, no fault can take the lead in property division. However, due to the difficulty in obtaining evidence, most divorce cases involving extramarital affairs can be identified. Indirect evidence does not identify that some plaintiffs cited a large number of witness testimonies in order to claim that the other party had an extramarital affair in court, but these evidences are indirect evidence, which will be denied by the court without direct evidence support and denial by the other party. Related knowledge In divorce cases, it is quite common for text messages to be used as evidence for the parties. With the development of society and the progress of science and technology, SMS, as a new type of evidence besides the seven types of evidence in litigation, is gradually being put into court by judges and parties for questioning. The evidential effect of mobile phone short messages has aroused widespread concern, but whether mobile phone short messages can be used as evidence is not clearly stipulated in China's current laws. At present, the court has not formed a general understanding of the effectiveness of short messages, and mainland courts rarely make representative judgments on this. The people's court newspaper published a case last year and found that SMS can be used as one of the evidences to finalize the case. With the popularity of mobile phones, the court has to study the legal theory and practice of SMS as evidence. Different from e-mail, SMS has the characteristics of authenticity, objectivity, difficulty in modification and closed flash memory, so the content of SMS is not easy to be attacked. The general mobile phone function cannot modify the content of short messages. In addition, short messages are related in two ways. First, each mobile phone number can only be sent and received in one place, with the sender's mobile phone number, time, content and some names. The mobile phone number can be found through the short message content, which is related to the case; Second, two numbers are assigned to send and receive, which has a corresponding relationship. Judging from the legality of mobile phone short messages, it is legal to go through legal network access procedures or cards, and they can be used legally after going through the procedures. It is legal to receive short messages.