Is secretly recording evidence considered legal evidence?

Can audio recordings be evidence?

Audio recordings, videos, etc. can be used as evidence in litigation, but there are still some restrictions.

1. Recordings, videos, etc. should retain the original carrier as much as possible

Article 22 of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings (hereinafter referred to as the "Provisions") stipulates: "Where investigators investigate and collect computer data or audio-visual materials such as audio and video recordings, they shall require the person being investigated to provide the original carrier of the relevant materials. If it is difficult to provide the original carrier, a copy may be provided.

Article 68 of the Several Provisions limits the scope of exclusion of illegal evidence to "evidence obtained by means that infringe upon the lawful rights and interests of others or violate the prohibitive provisions of the law", the former includes evidence obtained by acts that infringe upon the lawful rights and interests of others by means of detention, coercion, etc., and the latter includes all evidence obtained by methods that violate the prohibitive provisions of the law. Due to the special nature of matrimonial cases, such methods of obtaining evidence cannot be treated as illegal evidence, and as long as the evidence is not obtained through acts that seriously infringe upon the lawful rights and interests of others, such as detention or coercion, or evidence obtained by methods that violate the prohibitive provisions of procedural law or substantive law, the evidence shall be found to have evidentiary capacity.

3. Evidence such as audio recordings and videos should not be used alone as much as possible

Audio-visual materials such as audio recordings and videos cannot be used alone as the basis for determining the facts of a case, and can only be used as evidence in a verdict if there is other evidence to support it. For example, article 69 of the Civil Procedure Law stipulates that "the people's court shall distinguish the authenticity of the audio-visual materials, and examine and determine whether they can be used as the basis for determining the facts in combination with other evidence in the case"; Article 69 of the Several Provisions further clearly stipulates that "audio-visual materials with doubtful points" cannot be used alone as the basis for determining the facts of a case.

1. Article 63 of the Civil Procedure Law stipulates that evidence includes: audio-visual materials and electronic data.

Evidence must be verified to be true before it can be used as a basis for determining facts.

It can be seen that audio-visual materials such as audio and video recordings are one of the legal types of evidence in China.

2. Article 68 of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings stipulates that evidence obtained by means that infringes upon the lawful rights and interests of others or violates the prohibitive provisions of the law cannot be used as the basis for determining the facts of a case.

Article 69 stipulates that the following evidence alone cannot be used as the basis for determining the facts of a case:

questionable audio-visual material;

Photocopies and reproductions that cannot be checked with the originals or originals;

Article 70 stipulates that if a party raises objections to the following evidence but does not have sufficient evidence to the contrary, the people's court shall confirm its probative force:

Audio-visual materials that are supported by other evidence and obtained by lawful means, and which are beyond doubt, or copies that have been verified with the audio-visual materials;

Legally obtained** recordings are valid.

Although the Reply of the Supreme People's Court on the Issue of Whether Materials Obtained by Recording Without the Consent of the Other Party Can Be Used as Evidence (Fa Fu 1995 No. 2) states that recording the conversation without the consent of the other party is illegal and cannot be used as evidence.

However, the "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings" later stipulates that the court shall confirm the probative force of lawfully obtained private audio recording evidence.

1Who will record?

It is best for the person to record the recording to be the person himself, because the other party is less vigilant about the party, is defenseless, and is easy to tell the truth.

2. Who do you want to record?

For example, in private lending, it is the debtor himself, not his family.

If the defendant is a company, then it is better to be the legal representative, or the person in charge of the project. Staff members may also be able to do so in certain circumstances, but generally only as supporting evidence.

3. What to record? In practice, the biggest problem with many people's recordings is that the purpose is not strong, and the information to be recorded is not recorded, but a bunch of messy recordings.

4. **The recording must be kept in the original!

In practice, many people delete the original documents on their mobile phones after recording them, copying them to their computers or sending them to lawyers.

According to the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings, if the other party objects to the recording evidence, the court or appraisal agency will require you to present the original recording materials, otherwise the probative power of the recording as evidence will be questionable.

5. **Recordings can be notarized.

The Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings stipulate that notarized evidence has higher probative power than ordinary evidence. Notarized recordings can be found by the court to be unedited, and the notarization fee is not high.

Therefore, in practice, you can contact the notary office in advance, dial ** in front of the notary public and record it, and the notary office will issue a "Notarial Certificate of Evidence Preservation".

Legal Analysis: Chinese law does not prohibit non-consensual recordings. However, whether the recording is legal and valid and admissible as evidence is another matter for another matter.

In order for recording evidence to have legal effect, the following three conditions must be met at the same time: First, the recording evidence presented by the parties has not been edited, edited or forged, is closely connected, the content has not been tampered with, and has objective authenticity and coherence. Second, the acquisition of audio recording evidence must comply with the provisions of the law.

If the holder of the recording evidence uses the audio recording materials that invade the privacy of others or violate the prohibitions of the law, such as the audio recordings obtained by eavesdropping at his workplace or residence, it is evidence obtained in violation of the prohibitions of the law and cannot be used as evidence in litigation. The third is that the other party does not raise a refutation or the reasons for the refutation are not established. When the court uses the recorded evidence as the basis for adjudicating a case, it should also examine whether the recorded evidence is suspicious.

Legal basis: "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings" Article 93: People's courts shall make a comprehensive judgment on the authenticity of electronic data in conjunction 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 depends is complete and reliable;

2) Whether the hardware and software environment of the computer system on which the generation, storage, or transmission of electronic data is in a normal state, or whether there is an impact on the generation, storage, or transmission of electronic data when it is not in a normal operating state;

3) Whether the hardware and software environment of the computer system on which the generation, storage, and transmission of electronic data depends has effective monitoring and verification methods to prevent errors;

4) Whether electronic data has been completely preserved, transmitted, or extracted, and whether the methods for preservation, transmission, destruction, or extraction are reliable;

5) Whether the electronic data is formed and stored in the course of normal exchange activities;

6) Whether the entities that store, transmit, or extract the electronic data are appropriate;

7) Other factors affecting the integrity and reliability of electronic data.

Where the people's courts find it necessary, they may review and judge the veracity of the electronic data through methods such as appraisals or inquests.

Where the recording does not infringe upon the lawful rights and interests of others, and does not violate the prohibitive provisions of the law, it can be used as evidence.

For example, trespassing into a third home in order to obtain evidence of infidelity is a tort, and of course the evidence obtained is not legal. However, if the evidence is collected at one's own home, it does not constitute infringement. If it is placed in a third party's office, it is not legal.

Evidence obtained through wiretapping devices prohibited by law is not legal, because the means of collecting evidence are not legal, as long as it is not illegal, the audio data recorded by oneself can be used as evidence and has probative force.

For the legitimacy of audio recording evidence, the following case gives a reference:

Chen Mouxiong is a shareholder of a logistics integrated market company in Zhuhai. On March 20, 2008, Zhang Mouwu and Chen Mouxiong signed a "Cooperation Agreement" on the cooperation in the operation of the logistics integrated market project. In November 2010, Zhang Mouwu filed a lawsuit with the Xiangzhou District Court of Zhuhai City, requesting that Chen Mouxiong be sentenced to fulfill the payment obligation due in accordance with the law and pay him 15 million yuan and overdue interest.

In the lawsuit, the parties differed from each other in their statements that "the relevant agreement signed in 2001 in relation to the project was null and void". Zhang Mouwu said that he and Chen Mouxiong knew each other around 2001, while Chen Mouxiong said that they met around 2006. The Xiangzhou District Court held in the first instance that Zhang Mouwu's lawsuit was in line with the agreement, and ruled that Chen Mouxiong should pay Zhang Mouwu 15 million yuan and overdue interest.

The Zhuhai Intermediate People's Court upheld the result in the second-instance judgment. Chen Mouxiong appealed against the verdict, and the Guangdong High Court ruled to bring the case to trial, and Jing Nashan changed the judgment and revoked the original.

The first- and second-instance judgments rejected Zhang Mouwu's claims. After receiving the complaint, the Supreme Court decided to bring the case to trial. On April 26, 2016, the case was heard in the First Circuit of the Supreme Court.

During the retrial of the Supreme Court, Zhang Mouwu submitted a recording, which was conducted by the court in court. The Supreme Court held that the recording was a conversation between the two parties after the dispute arose over the Cooperation Agreement, which could objectively reflect the relevant matters of the cooperation between the two parties, and was closely related to the basic facts of the case, and should be.

The above is all for the issue, in general, the recording does not infringe on the legitimate rights and interests of others, does not violate the prohibitive provisions of the law, and can be used as evidence.

Article 68 of the Several Provisions on Evidence in Civil Proceedings stipulates that evidence obtained by methods that infringe upon the lawful rights and interests of others or violate the prohibitive provisions of the law cannot be used as the basis for assessing the facts of a case. Article 70 provides:

Audio-visual materials that are supported by other evidence and obtained by lawful means, and which are beyond doubt, or copies that have been verified with the audio-visual materials;

Stealing a recording can be used as evidence, but certain conditions need to be satisfied.

Evidence of stealing audio recordings can be used as evidence, but it needs to have the "three natures" of evidence to have probative power. The three types of evidence mainly refer to authenticity, legitimacy, and relevance.

The acquisition of evidence of surreptitious recordings must comply with the provisions of the law, and the conversation between the two parties to the recording is a free expression of intent, and is bona fide and necessary; The recording evidence has good technical conditions, the identity of the interlocutor is clear, the content is clear, Chang Min is objective, true and coherent, has not been edited or forged, the content has not been altered, there is no doubt about it, and there is other evidence to support it. If the above conditions are met, the audio recorded secretly can be used as evidence.

Audio recordings belong to electronic evidence and audio-visual materials, which are a type and form of evidence, and litigants have the right to submit them to the court as evidence.

The Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings stipulate that evidence obtained by means that infringes upon the lawful rights and interests of others or violates the prohibitive provisions of the law cannot be used as the basis for determining the facts of a case. That is to say, only evidence obtained by infringing upon the lawful rights and interests of others or by means in which the destroyer violates the prohibitive provisions of the law cannot be used as the basis for determining the facts of the case.

If the audio or video recordings without the consent of the relevant parties do not infringe upon the lawful rights and interests of others, nor do they violate the prohibitions of the law, the audio or video recordings may be used as evidence. At the same time, the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings stipulate that if one party raises objections to the following evidence but does not have sufficient evidence to refute it, the people's court shall confirm its probative force:

3) Audio-visual materials that are supported by other evidence and obtained by lawful means, or copies that are verified to be correct with the audio-visual materials.

Therefore, two conditions must be met for a surreptitious recording to be legal evidence:

First, the acquisition of recording evidence must comply with the provisions of the law, and the conversation between the two parties to the recording is a free expression of intent, which is good faith and necessary;

The second is that the recording evidence has good technical conditions, the identity of the interlocutor is clear, the content is clear, it is objective, true and coherent, it has not been edited or forged, the content has not been changed, there is no doubt, and there is other evidence to corroborate.

Article 68 of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings.

Evidence obtained by methods that infringe upon the lawful rights and interests of others or violate prohibitive provisions of law cannot be used as the basis for determining the facts of a case.

Article 70 of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings.

Where one party submits the following evidence, and the other party raises objections but does not have sufficient evidence to the contrary, the people's court shall confirm its probative force:

1) The original documentary evidence or a photocopy, **, duplicate, or excerpt of the original documentary evidence;

2) The original physical evidence or reproductions, video materials, etc., that have been verified to be correct with the original physical evidence;

3) Audio-visual materials that are supported by other evidence and obtained by lawful means, or copies that are verified to be correct with the audio-visual materials.

4) A record of the inquest of physical evidence or the scene of the cultivator made by one party to the people's court in accordance with legally-prescribed procedures.