Editor’s message
After the implementation of the Supreme People’s Court’s Decision on Amending Several Provisions on Evidence in Civil Litigation, records such as WeChat and Weibo were officially used as evidence in litigation.
However, many parties lost the case because they didn’t know how to keep the WeChat evidence, how to submit it, and how to enhance the probative force. Therefore, this paper sorts this out in order to help those in need.
1. What WeChat records can be used as evidence?
According to the form of WeChat record, WeChat evidence can be divided into text WeChat record, picture WeChat record, voice WeChat record, video WeChat record, network connection and transfer payment information.
1. Text WeChat record. Including WeChat friends’ chats, texts published by WeChat friends’ circle, sent text files and articles published by WeChat WeChat official account. This kind of record is the most common and numerous content in WeChat, such as the common "WeChat IOUs".
2, picture WeChat record. Including pictures reproduced, produced and photographed when chatting with WeChat friends, publishing WeChat friends circle and WeChat WeChat official account, and various expressions used.
3. Voice WeChat record. Including information in the form of voice in chat with WeChat friends, published WeChat friends circle and WeChat WeChat official account articles.
4. Video WeChat recording. Including videos reproduced, produced and shot during chatting with WeChat friends and publishing WeChat friends circle and WeChat WeChat official account.
5, network link records. Including the network links sent during chatting with WeChat friends and publishing WeChat friends circle and WeChat WeChat official account. The biggest difference of this kind of WeChat records is that the contents of the links were made by the third party or the sender in advance.
6. Payment and transfer information generated when using the functions of payment, transfer and red envelope. This type of WeChat evidence is mainly generated when using the WeChat payment function.
Second, how should WeChat evidence be retained?
Tencent has publicly issued a statement that WeChat does not keep any users’ chat records, and the chat content is only stored in users’ mobile phones, computers and other terminal devices.
The statement is as follows:
It can be seen that the retention of WeChat evidence still depends on ourselves.
However, many people don’t know how to keep WeChat evidence. The following are specific methods:
The first step is to log in to your own WeChat on the computer and click the thumbnail function bar in the lower left corner.
Step 2: Pop up the menu bar to backup and restore.
The third step is to back up the chat records to the computer. Note: At this time, the mobile phone and the computer should be connected to the same network (WIFI).
Third, how to submit WeChat evidence to the court?
Although the methods and procedures for collecting evidence have been clearly defined, in real life, many people are not familiar with the specific operation steps, and only provide printed copies or screenshots, which may not be recognized by the court. The procedures, contents and methods of collecting electronic data directly determine the authenticity, legality, probative force and relevance of this evidence to the facts to be proved.
(1) What should I pay attention to when submitting evidence related to WeChat?
(1) Provide a demonstration of the process of logging into our WeChat account by using terminal equipment. It is used to prove the legitimacy of its WeChat chat record and the authenticity of its identity.
(2) Provide personal information interface for both parties to chat. With the unchangeable characteristics of micro-signals, combined with the information such as mobile phone numbers and avatars displayed in the personal information interface, the real identities of both parties are fixed.
(3) Provide a complete chat record. According to the characteristics that WeChat chat records can only be deleted but not added in the terminal, the complete chat information of each WeChat client is compared to verify the integrity and authenticity of relevant information.
(2) How to display WeChat evidence in court?
The parties concerned should keep the original carrier of WeChat in order to present it in court. The original carrier includes mobile phones, computers or other electronic devices that store electronic data.
When the judge asks to show the original carrier of WeChat and login software to show electronic evidence in court, he should show it according to the following steps, and check the consistency with the pictures, audio and video formed by fixed electronic evidence:
(1) The account holder logs in to WeChat and displays the name of the account used for logging in.
(2) Find the opposite user in the address book and click View Personal Information to display the contents with identity orientation such as the name of remarks, nicknames, micro signals and mobile phone numbers displayed in the personal information interface.
(3) Click "Send Message" in the personal information interface to enter the communication dialog box, and display the information content generated during the dialogue one by one. For text files, pictures, audio, video, transfer or red envelope content, you should click Open to display.
(4) When displaying the transfer information, you should click the chat details in the communication dialog box to view the transfer records one by one and display the transfer payment information.
(5) If the electronic evidence provided belongs to the dialogue record (including words, audio and video), it should be completely reflected in the dialogue process, and the content related to the facts of the case should not be provided selectively, and the court may request to supplement the complete dialogue record within a specified period; If you deliberately provide the contents of the dialogue records selectively, you will bear the corresponding legal consequences.
(3) Careful use of the WeChat cleaning function can preserve evidence.
Many people will report that there are many WeChat friends and a lot of chat content, and they will often clean up WeChat content, so they can’t save so much or so long information. What should we do in this case?
Automatic cleaning functions such as "one-click slimming" and "garbage cleaning" should be used with caution. Don’t think that "synchronous" operation means "everything is fine", and evidence must be preserved before cleaning up. You can go to a notary office for notarization or take other reliable electronic evidence preservation companies for preservation.
If the electronic data provided by the parties have been notarized or confirmed by the third-party deposit platform, the authenticity should be recognized without evidence to the contrary. If this evidence is also legal and relevant, its probative power will not be lower than other evidence.
Especially for some infringing evidence, in order to prevent the loss of evidence, the evidence should be preserved as soon as possible when the infringement is discovered. Self-evidence collection lacks supervision, and electronic data is easy to be tampered with. Preserving evidence through professional institutions is still the most effective way.
Evidence preserved by a third-party deposit platform or notary office has higher probative power than general evidence. Unnotarized electronic evidence may be at risk of not being accepted by the court. If the electronic evidence has not been notarized by a notary office, or if it is notarized but the court thinks it necessary, the parties concerned shall display it in court by using the original carrier and logging in the corresponding software, and check it with the pictures, audio and video formed by the submitted fixed electronic evidence. When handling security notarization, it is also necessary to follow the above process steps.
(4) What should we pay attention to when preserving WeChat evidence?
(1) For the pictures in WeChat, it is necessary to notarize the pictures and other records as a whole, and it is not recommended to notarize the pictures separately.
(2) Video has the function of intuitively reflecting the facts. Usually, videos shot by users themselves are more probative. Videos reproduced or produced are usually not as probative as those shot by users themselves because they don’t know the original source or have traces of post-editing. When handling security notarization, we should pay attention to the review of video formation methods. It is advisable to extract and fix evidence by burning such WeChat records.
(3) As recorded data stored in electronic media, WeChat voice is subject to the provisions of electronic data, but it cannot be used as a basis for separate finalization. The validity of WeChat voice should meet the following conditions: save the original record; The content must be objective, true and coherent; The content recorded in WeChat voice is clear and accurate, and both parties have made clear statements on the issues discussed; Because of the characteristics of WeChat pronunciation, such as easy to change and difficult to identify, it is sometimes not sufficient to take it as the proof basis alone. Therefore, in addition to WeChat pronunciation, other evidence should be fully provided to support it.
(4) If the files transmitted through WeChat are not saved in time, they will be invalid, and there are some network links, etc. In addition to the above steps, the opened text files or network link contents should be preserved. Preserving the downloaded text files or network links alone cannot prove the authenticity and relevance, and may not be adopted by the court.
(5) Once there is money exchange, the original records of WeChat records must be saved, and only screen shots can’t prove the authenticity. Pay attention to keeping the transfer records and don’t delete them at will. When money transactions occur, first of all, we should pay attention to clarifying the identity of the other party, second, we should clarify the purpose, and indicate the purpose of transfer when making remarks; Third, we should keep good records. In addition, it can also assist telephone recording, dunning text messages, IOUs and other evidence to form a chain of evidence that complements each other.
4. How to retrieve the transaction records of WeChat transfer?
Regarding the WeChat transfer transaction record, you can directly retrieve it from WeChat. The specific operation is as follows:
Step 1: In the menu bar at the bottom of WeChat, select the "I"-"Payment" function menu.
Step 2: After entering the main interface of the payment menu, select the "wallet" function.
Step 3: In the main interface of wallet function, select the "bill" function at the top.
Step 4: In the bill function interface, click the "Frequently Asked Questions" button at the top, and the "Download Bill" function will appear in this interface. Click this function to enter the bill download interface.
Step 5: In the bill download interface, there are two functional options, namely "for personal reconciliation" and "for proof", which correspond to different purposes of the bill. Among them, the bill for personal reconciliation is in Excel table format, and the bill for certification is in PDF format.
Step 6: After selecting the transfer purpose, you can further select a specific date interval to support the transfer of the transaction flow within a user-defined time, with a maximum of one year.
V. Relevant provisions on electronic evidence
Provisions of the Supreme People’s Court on Evidence in Civil Proceedings
Article 14 Electronic data include the following information and electronic documents:
(1) Information published by web pages, blogs, microblogs and other online platforms;
(2) Communication information of network application services such as SMS, email, instant messaging and communication groups;
(3) User registration information, identity authentication information, electronic transaction records, communication records, login logs and other information;
(four) documents, pictures, audio, video, digital certificates, computer programs and other electronic files;
(five) other information stored, processed and transmitted in digital form that can prove the facts of the case.
Article 93 The people’s court shall make a comprehensive judgment on the authenticity of electronic data in combination with the following factors:
(1) Whether the hardware and software environment of the computer system on which the generation, storage and transmission of electronic data depend is complete and reliable;
(2) Whether the hardware and software environment of the computer system on which the generation, storage and transmission of electronic data depend is in normal operation, or whether it will affect the generation, storage and transmission of electronic data when it is not in normal operation;
(3) Whether the hardware and software environment of the computer system on which the generation, storage and transmission of electronic data depend has effective monitoring and verification means to prevent errors;
(four) whether the electronic data is completely preserved, transmitted and extracted, and whether the methods of preservation, transmission and extraction are reliable;
(five) whether the electronic data is formed and stored in the normal activities;
(six) whether the subject of saving, transmitting and extracting electronic data is appropriate;
(seven) other factors affecting the integrity and reliability of electronic data.
If the people’s court deems it necessary, it may examine and judge the authenticity of electronic data by means of identification or inspection.
Article 94 The people’s court may confirm the authenticity of electronic data in any of the following circumstances, unless there is evidence to the contrary sufficient to refute it:
(a) electronic data submitted or kept by the parties to their disadvantage;
(2) Provided or confirmed by a neutral third-party platform for recording and storing electronic data;
(3) Formed in the normal business activities;
(4) kept by means of file management;
(5) preserved, transmitted or extracted in the manner agreed by the parties.
If the contents of electronic data are notarized by a notary office, the people’s court shall confirm its authenticity, unless there is enough evidence to the contrary to overturn it.
Source: micro-judge
Audit: East Audit
Operational Support: Feidong Court & All Media Studio of Anhui Legal Newspaper
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