2021-12-05

Can network emoticons become “evidence in court”? Experts say so

By yqqlm yqqlm

Can network emoticons become “evidence in court”

emoticons have been written into the judgment lawyer: it is difficult to conclude the direct evidence of the case, and it is necessary to eliminate reasonable doubt

2330976704 - Can network emoticons become "evidence in court"? Experts say so

in daily life, emoticons are widely used in online chat. But every expression you send may become “evidence in court”. The reporter of Beijing Youth Daily noted from China judicial document network that emoticons have been listed in court judgments in many places, including not only civil cases but also criminal cases. They have become an auxiliary evidence in the sentencing or characterization of the case. However, experts also said that in view of the fuzziness of the meaning of emoticons, how to interpret and identify the meaning of network expressions has indeed become a challenge for judges in the network era

several practicing lawyers told Beiqing daily that in legal practice, wechat chat records can be used as evidence, but whether the online expression can be used as “evidence in court” depends on the specific case and the specific circumstances of the case. Especially in criminal cases, we should eliminate reasonable doubt and so on

emoticons are regarded by criminals as “reimbursement symbols”

in the civil judgment (2019) Yue 03 min Zhong No. 24500 of Shenzhen intermediate people’s Court of Guangdong Province, a judgment was made on a contract dispute involving wechat emoticons. As the creator, LU Hong sent his lyrics to Tian min, the legal representative of Shenzhen Daoyi Film Group Co., Ltd. on April 24, 2018. After Tian min indicated that he was on the road, he sent a wechat emoticon [Qiang]

finally, the judgment held that: “combined with the front and rear chat content of both parties, the court of first instance held that the wechat emoticon was not an approval of LU Hong’s lyrics, but a polite reply, and could not be used as the basis for LU Hong’s lyrics to comply with the provisions of the litigation contract.”

in another judgment of private lending case, the lender Zhang Huifeng sent a wechat to the borrower Yan Hao, The loan details of the latter are listed. Yan Hao returned an emoticon “OK”. This emoticon means recognition in Zhang Huifeng’s view, but Yan Hao said: this “OK” does not recognize Zhang Huifeng’s wechat content

the judgment of Anhui Taihe County People’s Court (2020) Wan 1222 min Chu No. 3487 holds that the wechat record submitted by Zhang Huifeng has not been clearly recognized by Yan Hao, so the wechat content can not be used as the basis for the corresponding amount owed by the latter to Zhang Huifeng

compared with the wechat expressions in the above two judgments, the meaning of other expressions is relatively vague. For example, in the judgment of a housing lease dispute case, after the expiration of the lease, the lessee repeatedly reminded and proposed the willingness to increase the lease, which neither means continuing the lease nor moving out of the real estate involved in the case, but replied to an emoticon of “sun”. In the lessor’s view, this “sun” emoticon means the recognition of rent increase. However, the lessee believes that this determination has no factual and legal basis

the intermediate people’s Court of Shenzhen, Guangdong province finally supported the lessor and held that the lessee should agree to continue the lease according to the standard after the rent increase. At the same time, it is judged that the lessee shall bear the corresponding house occupation and use fee after the expiration of the lease

emoticons appear not only in civil judgments, but also in judicial documents of some criminal cases. Hangzhou intermediate court of Zhejiang Province (2020) zhe 01 Xing Zhong No. 386 wrote in the criminal ruling of the second instance on the crime of organizing prostitution such as Zhu Zhixiang, Deng Hongwei and Peng Fen: “Liu and others sent smiles and other emoticons to Zhu Zhixiang’s wechat for reimbursement after prostitution.”

the meaning of emoticons is vague, and the specific identification is facing challenges

as a scholar studying network expressions, Hu Ling, associate professor and vice president of the school of law of Shanghai University of Finance and economics, pointed out in an interview with the media that with the popularity of instant messaging software, people are increasingly using network expressions to express their attitudes, Internet expressions also appear more and more frequently in court as evidence

Hu Ling said that in most domestic cases, Internet expressions usually appear only as auxiliary evidence, not decisive. However, in view of the fuzziness of the meaning of emoticons, how to interpret and identify the meaning of network expressions has indeed become a challenge for the judiciary in the network era

Ge Shuchun, a member of the China Law Society and lawyer, told the Beiqing daily that whether the Internet expression can be used as “evidence in court” in specific legal practice depends on the specific case and the specific circumstances of the case. Taking wechat as an example, in the fast-paced life of modern society, many people often don’t look carefully after receiving each other’s news, but they respond with an online expression out of politeness. In case of a dispute between the two sides, it is obviously inappropriate for one party to take out the chat record with an online expression as the core evidence

however, cross examination of evidence is the right of both parties. If one party uses chat records with internet expression as evidence and the other party denies it, the party who takes Internet expression as evidence should use other evidence to prove the truth of the claimed facts, otherwise it is difficult to be called direct evidence for a final case. The people’s Court of Taihe County, Anhui Province found that the wechat records submitted by Zhang Huifeng were not clearly recognized by Yan Hao, which is the best explanation

it is difficult to make a decision directly only by network expression

Ge Shuchun said that it is not possible to make a decision directly only by network expression. In practice, if one party uses chat records with network expression to provide evidence or even sue the defendant only, in the absence of other evidence or other chat records to support it, the judges can not judge the case only by network expression, otherwise it will give people a kind of behavior of “subjective judgment” and even suspicion of judging the case by guessing. Of course, in some major criminal cases, it is not excluded to use code, code language or network expression as a joint or to carry out criminal activities. However, in the process of handling criminal cases, the facts of conviction and sentencing should be proved by the chain of evidence. The final evidence must be verified by legal procedures, and the reasonable doubt on the determined facts has been eliminated by integrating the evidence of the whole case. Obviously, the Internet expression alone must not be directly finalized

Deng Qianqiu, a lawyer at Beijing Zhongwen law firm, believes that under normal circumstances, emoticons need to be combined with language expression to reach a clear conclusion. Whether a simple emoticon constitutes a definite meaning expression needs to be combined with the specific situation when the parties send emoticons, social conventions, communication habits between the parties, etc, Make a cautious judgment from the cognitive standpoint of ordinary people

Xu Hao, a lawyer from Beijing Jingshi law firm, told Beiqing daily that in judicial practice, wechat chat records can be used as evidence. Wechat expressions are a part of wechat chat records, not used independently. After completing the specific chat records, they are identified in the specific chat context

according to the civil procedure law, evidence includes electronic data. Evidence must be verified to be true before it can be used as the basis for determining facts. As evidence, wechat chat records are the most important three points. First, it depends on whether the evidence presented by the parties is the original. If it is only a screenshot or photo of wechat chat records, if the other party does not recognize it, its authenticity will be lost if there is no other supporting evidence

secondly, determine whether the two sides of the chat record, especially the identity of the other party, are the other party. This process is not taken for granted, such as whether the micro signal is clearly in relevant documents; Whether the micro signal has real name authentication, whether the micro signal is bound with the mobile phone number of real name authentication, etc

again, it depends on the content of the chat record and whether the formation or acquisition of the chat record is legal

this group of articles / our reporter Zhu Jianyong co-ordinates / Bai Long

the precedent instructions in judicial practice make the expression pack “classified”

SHEN Teng, a part-time professor of China University of political science and law, a master’s tutor and a lawyer of Beijing shuaihe law firm, told the reporter of Beiqing daily that the original expression packs are pan entertainment things and play a certain role in the chat atmosphere. However, with the deepening of the function of expression package, when users cover emotions and meanings, expression package is not only entertainment. Expression package has become a meaning expression of recognition, abandonment, change, neutrality and other evaluation aspects of people’s expression of heart, and participates in language communication. As a part of language communication, it is loaded into civil disputes, even in criminal crimes. As a part of evidence, this expression package also has a kind of motivation, subjectivity, characteristics and so on

SHEN Teng said that the expression pack is not a language after all. It is a kind of language and cultural creation. The culture is obvious. Its meaning can be recognized through the culture. The proportion of culture and (meaning) is also very different, so our criteria for judging it are also different. At present, there is no unified standard for expression packs, so it is necessary to continuously have precedent instructions in judicial practice to make expression packs express accurate meaning by classification or individualization