An Empirical Analysis Of The Evidence Application Of "Communication Information Of Network Application Service" In Civil Litigation

With the continuous development of network communication technology,communication tools and communication software are increasingly connected with our lives.In judicial decisions,the number of cases in which communication information of network application services is used as evidence is increasing.2019 Supreme People’s Court issued the Decision on Amending Certain Provisions on Civil Litigation Evidence(hereinafter referred to as “New Civil Evidence Provisions”),Article 14,Paragraph 2,which clearly stipulates that “communication information of network application services ” as a type of electronic data,which is usually manifested as cell phone text messages,emails,instant messages and communication groups.Compared with other types of evidence,the way of collecting communication information of web application services,the collection procedure,the way of proof and the admissibility of evidence have major differences,and the way and procedure of collecting communication information of web application services directly determine the authenticity,legality,relevance and probative power of the evidence.Since there is no special legislation on electronic data evidence including communication information evidence of network application services in China,the relevant provisions are scattered in numerous articles and no system is formed,thus bringing a series of difficulties to the judicial adjudication of communication information evidence of network application services.By reviewing a large number of documents on communication information of web application services as evidence,it can be found that in judicial practice,there is a lack of unified standard in evidence collection for such evidence of communication information of web application services,and it is easy to conflict with privacy protection.In the process of proof,there is the problem that the parties do not give complete evidence.In the cross-examination stage,compared with other types of evidence,the parties rely too much on the notarial certificate as a way of proof.For the examination and judgment of the authenticity of communication information evidence of network application services,there are difficulties in the confirmation of the identity of the subject and the verification of the original carrier.For the review and judgment of relevance,China currently lacks corresponding judgment standards and institutional norms,and unlike other traditional types of evidence,the content of communication information of network application services is somewhat arbitrary,which will cause obstacles to the judge’s judgment of relevance.Although,in the current judicial practice,few parties have questioned the legality of communication information evidence of web application services,we should also note that there is a lack of legality review judgments.The judgment of the size of the evidential strength of the evidence depends to a certain extent on the free mind of the judge,and the lack of unified judgment rules for the review and judgment of the evidential strength of the communication information evidence of the network application service is not conducive to the establishment of judicial authority.In response to the above dilemma,it should be improved from the aspects of evidence taking,evidence presentation,cross-examination and certification.For the lack of evidentiary standards,evidentiary standards can be established by clarifying the collection rules and specific procedures,and clarifying the scope of evidence to protect the right to privacy.The evidence system of communication information of network application services can be improved by establishing the principle of evidence and opening up the way of evidence.By refining the content of the examination of notarial certificates to solve the problems of the parties in the examination of notarial certificates.For the identification of the identity of the subject,the parties can effectively prove the identity of the subject in the communication information of the network application service by building a long-term cooperation mechanism with the platform.For the examination and judgment of the authenticity of the content of the communication information evidence of the network application service,the specific elements of the judgment of authenticity in the“New Civil Evidence Provisions” are used as the basis to enhance the operability of the judgment of authenticity.The judgment of relevance is not only related to the ability of evidence,but also related to the judgment of probative power,and the standard can be constructed in both content and time.The judgment of probative power has always been a difficult problem in domestic theory and practice.By drawing on the general rules for judging the probative power of traditional evidence,we explore the rules for judging the probative power of communication information of network application services in order to improve the review judgment of the probative power of such evidence.