The characteristics and application of divorce litigation evidence (Hao Mouran)

 

About 1 of bigamy:

            If the parties do not bring criminal private prosecution, but only to the defendant bigamy grounds for divorce, must be approved by the people's Court of criminal justice, illegal bigamy relationship termination in accordance with the law, and the bigamy in accordance with the criminal law sanctions.

The Supreme People's court "about some problems in the implementation of" the people's Republic of China Criminal Procedure Law > explanation: "bigamy provisions of victim:" directly to the people's court, the people's court shall accept the case."

Accordingly, bigamy for criminal cases of private prosecution. Bigamy consequences: (1) the breakdown of marriage, divorce; (2) the innocent spouse enjoys the right to claim for divorce damage compensation; (3) the fault spouse bear criminal responsibility.

The Supreme People's court "marriage law" judicial interpretation of a second: cohabitation is extramarital sex and sustained, stable living together. The general thought: more than three months of uninterrupted live together in a house can be considered to constitute.

In the case, the main collection of the accused party and other heterosexual cohabitation evidence does not exist. If the collection of evidence can only prove it doesn't exist in the name of husband and wife and other heterosexual cohabitation, such evidence is from another angle, he proved that he live with other specific facts, this will become the injured spouse because of cohabiting relationships fault spouse and other specific and seek damages for divorce evidence.

The defendant can proceed from the following aspects: (1) collection of character evidence; (2) collecting cohabiting heterosexual marriage, emotional evidence; (3) collect other evidence to the contrary.

 

Chain of evidence: four characteristics:

1.  Each other; (2) not contradictory; (3) closed chain of evidence; evidence between, between evidence and facts, connected between each key element of the fact, don't break, to ensure that each link has enough evidence to prove the facts, the facts of the case clearly. (4) the proof of its uniqueness conclusion. In fact the comprehensive identification, conclusions should be the only, the exclusion of other possible.

2 the parties and their legal representatives may apply to the people's court investigation evidence collection, not later than 7 days before the expiration of the time limit for adducing evidence.

Application of 3 proof and evidence in defense:

Disproof: refers to the parties in order to overthrow of facts, to prove the contrary evidence.

Evidence of Defense: refers to the authenticity, the other party to submit proof of legitimacy, relevance to refute, negation.

The difference: (1) is put forward to on the facts and evidence for the defense; only the evidence itself.

    (2) is presented in order to prove the contrary to the facts, thus can also direct the overthrow of the credit association; authenticity, only negative evidence to defend specific evidence in the evidence in the legitimacy,, did not prove contrary facts, not directly to overthrow the card to prove the facts.

(3) in practice, the judge can not be based solely on a party to deny the evidence to defend for the referee; authenticity, the judge will further review the legality of the evidence, relevance. While the disproof once proved to be reliable, the judge can reject the plaintiff's claim.

4

Secretly recorded: without the consent of the other party or not to make any express case, captured by the behavior of others or conversation secretly recorded audio-visual materials others access behavior.

Namely: without the consent of the other party secretly recorded audio-visual material behavior, shot.

The act without the consent of the other party, also did not explicitly told each other, but the act itself does not infringe the legitimate rights and interests of others or in violation of the law prohibiting sexual. Is a legal behavior.

 

Candid camera recording: is that without the consent of others or the case of Zhi Xiao, the secret means prohibited by law, or the law forbids the use of tools, equipment, the behavior of others or secretly recorded conversation between others and get the video, recording evidence act. Is a kind of illegal behavior, at least is improper behavior, can not be used as evidence.

 

The difference between the two is that: (1) using the shooting and recording tool. A law to allow individuals to buy and use audio, video equipment and acquisition equipment; another is the law prohibits individuals to buy and use a special monitoring equipment; such as a pinhole camera, phone monitor etc.. (2) shooting and recording sites. One is the personal privacy, the right to adequate housing, the right to rest and other protected places; one is open to the public, not to the individual rights of citizens protection places.

5 in the continental law system, the standard of proof in civil procedure, widely adopted the "theory of inner conviction", which requires the judge to the facts of the case to the extent that we can judge.

6 "civil evidence regulations" eighth article: "a party to the other party the facts stated expressly recognized, the other party without proof. But relates to identity the exception."

7 cohabitation period division of property, should respect the terms of the contract first, property effect agreed prior to the legal property effect.

8 clear thinking, logic, interlocking, step by step is reasonable, cecil.

"Civil evidence regulations" Article 64: "the judges shall in accordance with legal procedures, comprehensive and objective audit evidence, according to the legal provisions often, follow the judge occupation morals, use logic reasoning and daily life experience, has the validity and forcefulness of independent judgment on the evidence, and publicize the reason and result judgment."

Article 66: "the judges all the evidence in the case, should be associated with the degree of evidence and facts from all the aspects, evidence of a link between comprehensive judgement."

Article 79: "the people's court shall clarify whether or not to accept the evidence reason in the judgment. No dispute on the evidence, whether to adopt the reason can not describe in the book."

Should the facts are clear, is not clear, reasonable. The party wins to understand clearly, lose be sincerely convinced.

However, from the civil litigation "don't tell", "no request without trial" point of view, the property division cohabitation period parties active people's Court regulation approach is questionable.

 

9 use of evidence in divorce proceedings:

  Evidence is special:

1.   The statements of the parties play an important role. Divorce cases clients to appear in person and show their attitude to marriage.

2.   The most common type of evidence is: the testimony of a witness. The witness is generally the relatives and friends of party identification, the testimony of witnesses is difficult to judge, with evidence to review that material co..

3.   Note the use of the exclusionary rule of illegal evidence. The "evidence" in the provisions of the regulations of the exclusionary rule of illegally obtained evidence, the exclusionary rule of illegal evidence refers to the evidence, although the relevance and the facts of the case, but if the violation of the statutory procedures, violations of the legitimate rights and interests of others, or violate the legal provisions, shall not be adopted as the facts of the case evidence. To the party, how to collect sufficient evidence at the same time, to avoid the use of illegal means, it is within the scope of the law, to collect evidence against himself, is should be carefully considered. On the court, how to combine the existing provisions of the rules of evidence, a review of the evidence is legitimate, whether has the qualification of evidence, is also very important.

4.   China's marriage law also provides for divorce litigation limitation, namely: restrictions on the husband's divorce suit the spouse of an active serviceman divorce litigation limitation and specific conditions.

5.   "Civil evidence regulations" Article 73: "the parties on the same fact respectively provide the evidence to the contrary, but there is not enough evidence to negate each other evidence, the court should be combined with the circumstances of the case, evidence that one party provides evidence of stress is significantly larger than the other party to provide evidence, and the larger the probative force of the evidence confirmation. Because of the strength of the evidence can not judge the facts of the dispute led to difficult to identify, the people's court shall, on the basis of the burden of proof rules to make the judgment." In practice, as long as the facts of the case because the two sides have no advantage is unclear, the judge will make a determination on the basis of the burden of proof of the plaintiff. The defendant may not because of their own on the facts of the case does not bear the burden of proof and lack of evidence. Otherwise, once the burden of proof of plaintiff success, will bear the legal responsibility of adverse.

10 distribution of burden of proof, according to certain standards, the burden of proof in the distribution of different legal requirements in between two parties. General principle is: who advocates, who bears the burden of proof. There is, by a claim or legal relationship change, destroy the party change of rights and legal relationship, fact, elimination of the burden of proof. The principle of distribution of burden of proof: special. (explicitly required by law).

11 cohabitation three elements: (1) the extramarital sex; (2) not in the name of husband and wife; (3) the common life of sustained and stable.

12 this card and disproof: this card bears the burden of proof, refers to a party to the proof of proposition evidence; proof, refers to whether have the proof responsibility Party advocated the evidence. Two different proof standards: the certificate to prove that the object does not exist unclear status; it only needs to achieve the object of proof required is still unclear state is proof of success.

13 separate meaning: is that both sides not the obligation of husband and wife, not the parties do not live in a house; in fact, live in the same house, if does not perform the obligation of husband and wife, also form the separation.

14 in practice, the general rules of court review certification words: (1) the Witness Qualification review. (2) review the testimony of witnesses content, namely the content is objectivity, legitimacy, relevance. (3) balance of witness testimony and other evidence of unity and contradiction, form their own heart syndrome.

15 the burden of proof: refers to the provisions in advance by law, in the case of unknown fact, by one of the parties bear the risk of losing the burden.

To prove the facts of the case results in one of three ways: (1) proved to be true. (2) proved to be false. (3) is unclear.

16: "the Supreme People's Court on the trial of divorce cases how to identify certain opinions" couples that have been broken 2: lack of understanding of marriage, hasty marriage, marriage does not establish the feelings of husband and wife, it is difficult to live together, be regarded as couples that have been broken.

The feeling after marriage, can not simply from the couple married ever better, as well as the good time and bad time and other aspects of judgment, but also with the ideological cultivation, education, physiological factors, psychological status and personality characteristics were analyzed, in order to see the essence through the phenomenon, to find the truth the situation.

In practice, the judge based on the parties to listen to cross examination and debate, to form correct judge proof, also cannot do without the experience of everyday life and experience.

The provisions of the 17 "Civil Procedure Law": some opinions of the original judgment not divorce case, the people's Court of second instance shall think divorce, according to the voluntary principle, and child support, division of property in conjunction with the mediation, the mediation fails, the remand.

The court of second instance to correct the first instance court ascertained that the deficiency in the evidence and fact. Foundation concluded from both parties to a marriage, development status of married, divorced and have no good could be analyzed synthetically, and made the couple feelings that have been broken judgment.

 

18 extramarital cohabitation divorce proceedings:

 

An important feature is: evidence is indirect evidence. Due to the lack of direct evidence, only through indirect evidence indirect fact, again by indirect fact according to the main fact presumption rules. To the party, through indirect fact endorsement case indeed there are difficulties, because of the need of high litigation skills and ability to debate.

Another characteristic is: evidence collection very difficult. So, the parties may apply to the court for investigation and evidence collection.

 

For the parties to provide evidence is difficult, can apply for the power of courts to investigate and collect evidence. This is not the burden of proof in civil procedure law violation, but to the extent permitted by law, the parties provide evidence of the ability of balance.

 

The parties must provide evidence to the court, and has the responsibility to the judge in the litigation, also their submission of evidence and facts in the objective, logical, and common sense, to prove his claims.

 

In accordance with the current judicial interpretation: the inner meaning of civil burden of proof includes: (1) the burden of proof. (2) show or prove its claimed responsibility. (3) do not provide evidence or proof can not bear the adverse consequences.

The rules of evidence in civil litigation "Regulations" Article 15: the court to collect evidence: (1) relates to the interests of the state, the public interests, the legitimate rights and interests of others facts; (2) relates to the authority the additional party, suspend litigation, the end of the proceedings, to avoid irrelevant with the substantial dispute process matters.

 

The testimony of witnesses: is the witness of what one sees and hears the facts of the case statement. If the circumstances of the case analysis, the witness interpretation, evaluation, guess, guess, is not the testimony of a witness. The testimony of witnesses is easily affected by subjective factors. When the witnesses, shall not use the inference, guessing, critical language.

Discussion on the testimony of witnesses, consider the following factors: (1) the ability to witness the; such as: vision, judgment, memory, power of expression. (2) the testimony of the witnesses provide motivation; such as witness and the identity relationship, family relationship. (3) consistent testimony before and after.

 

Hearsay evidence: in China, the right to entrust to the facts, evidence value of hearsay evidence by the judge according to their own conscience and rational judgment. Witness testimony according to can be derived from personal experience, can also be based on hearsay evidence, and to the force, by the judge based on the experience of their understanding of the rules of evidence method to evaluate. The so-called rule of thumb, generally refers to all the knowledge and rule of human daily life experience summed up into.

 

Evidence, first with authenticity, the only real evidence it has evidence form, can be used as evidence. The lack of correlation between but if the evidence and the facts to be proved, do not have substantial evidence. Only when the evidence is put forward, which prove the authenticity of the object or the false evidence than without the presence of more clearly defined, we can identify the evidence has substantial evidence. Relevance.

 

A: as for private documents, all parties to produce their own advantageous to their private documents, usually without evidence. But for private documents themselves, have substantial evidence force. Document all made in litigation occurred, and is conducive to the evidence presented, general substantive evidence force low. In proceedings before making the instrument, substantial evidence force high.

 

 

Standard of proof:

1.  The law; the highest effect. (2) the judicial interpretation; (3) the proof responsibility in accordance with the contract; the principle of civil liability of autonomy, the parties may through consensus to distribution of burden of proof.

 

    Admission: refers to a party in the litigation, for the other Party advocated inconvenient facts, as recognized by the state or not controversial declaration.

Withdraw withdrawal of admission, the Supreme People's Court: "civil rules of evidence" 8: "the parties to withdraw the admission and agreed to by the other party in court before the debate, or there is sufficient evidence to prove its admission behavior is a major misunderstanding by coercion or circumstances and inconsistent with the facts, not from the other party the burden of proof."

 

The report documents, matter of fact evidence relative to the disposition document, which has established, change, termination of civil legal relationship content of documentary evidence, is low. The essence of evidence force documents making time, factors affecting the document properties.

 

According to the general principles of evidence law, when the main fact to use indirect fact to endorsement, and indirect fact and indirect fact to endorsement, turn down the words, the greater the risk of errors, the reliability of the lower the endorsement process.

 

 

19 cases of family violence marital damage compensation:

The proof, is that the parties to submit to the court and to the other party the evidence exchange data show, their behavior.

"The civil evidence regulations" 37 article: "upon the application of the parties concerned, the people's court may organize the parties concerned to exchange evidence before a court session. The people's court for the evidence more or difficult cases, shall organize parties after expiration of the defense period, the exchange of evidence before a court session."

Article 39 stipulates: "the exchange of evidence shall be carried out in the judicial personnel will. The evidence exchange process, the judges have no objections to the facts, evidence shall be recorded in the volume; object to the evidence, to classify recorded according to the facts to be proved, and record the objection reason. Through the exchange of evidence, to identify the main issues between the parties."

The main facts of a case: refers to the nature of the case that, form tort, determining the amount of compensation and other important facts.

For the proof of undetermined significance should be careful. If the evidence is undeserved, may cause the quality certificate of passive or failure. Therefore, the parties may quote from the following aspects, in order to avoid the evidence materials provide not only may not be able to prove their claims, the other party may also occur by themselves provide evidence to make of himself. (1) for proving the significance do not have a clear grasp of the burden of proof should not be. (2) for the testimony of witnesses repeatedly big, or repeatedly not to burden of proof. (3) involving illegal law prohibitions against the legitimate interests of others or the evidence is not evidence; for this kind of evidence although not proof, but can provide evidence to the court according to the confirmed by such evidence material facts, apply to the court for verification, property through legal way change the material evidence. (4) the evidence itself exist great contradiction, should have the choice of proof. (5) while the advantage of their claims, but obviously illogical or unnaturally evidence should not be the burden of proof. Such as high myopia people demonstrated in the distance to see for himself the fact, here the evidence is not evidence.

 

Evidence is the core of the whole litigation related to power, can realize their rights, no rights to defense. Evidence that can prove the real situation the facts of the case. The evidence itself is a kind of objective facts. Only after the court authentication, and is used to determine the facts of the case can be referred to as evidence.

 

Referee: refers to the court for the parties evidence the facts of the dispute and the parties to provide the judgment.

The structure of regulations for the premise, the case facts accord with the basic legal elements of the legal effect of specific provisions of the law, judgment is the syllogism rule.

 

The activities are always interlaced adducing activities and the proof activity, both parties engaged in surrounding the heart syndrome and positive evidence.

The fault does not belong to the fact facts in the field, but a legal evaluation. Fault evaluation of family violence divorce compensation litigation in the facts, namely fault evaluation according to the facts, is one of the spouses to live together family members as spouses, children, family violence.

 

20 cases of maltreatment desertion of one family member:

Evidence: often use presumption. Most of the time, no direct evidence, the judge according to law and experience of everyday life, from known facts to infer an unknown fact, to make up for the defect of insufficient evidence, to achieve fairness and justice.

Identification of conclusion is a kind of proof force is very strong form of evidence, proof force than that of documentary evidence, audiovisual materials, the testimony of a witness. Identification should pay attention to identification of qualification of people, process and identification method for identification of compliance with the law. Rebuttal evidence should focus on qualification, identification procedures, identification of authenticity, legality, science, justice to explain, as long as they can prove that self identification conclusion doubts exist on the one hand, is not recoverable, can apply for re identification.

 

With the burden of presumption:

Presumption, refers to a known fact existence and make another fact related or non-existent assumption. The presumption of judicial meaning, refers to the judge with the help of the existing facts, infer that there is another relevant facts or non-existent assumption. The countries of continental law system will be divided into legal presumption presumption presumption and fact.

"Regulations" Article 75: "there is evidence that a party has the evidence refuses to provide evidence, if the other party claims that the evidence is against the holder, can be presumed that the proposition."

The inner has three meanings: (1) a party has the evidence refuses to provide has been evidence; (2) the evidence against the possessor of the evidence, the judge can infer the other Party advocated the establishment; (3) the content is limited to the other party the presumption of evidence that is not conducive to the holders of the content of the evidence.

"Regulations" Article 9: "according to the known facts and the rule of daily life experience, can one infer the fact", the parties without the burden of proof to prove.

Presumption of fact, refers to the judge as a rule of thumb, with the known facts as the basis, to infer unknown facts means. Determine the presumption of fact is the basis of the normal contact between food, a causal relationship between the normal contact and experience through daily life long, repeated practice and use of, the causality is an inevitable phenomenon reflects the connection between. That whenever a phenomenon exists, another phenomenon will appear, with associated corresponding.

Presumption of fact is the supplement of legal presumption, mainly by the judge on the basis of discretion. In practice, the evidence and facts related, the logical relationship between the degree of evidence, the evidence that the strength of a comprehensive study, finally with high probability standard of proof to the facts of the case, the purpose of.

 

 

21 lift prepared by blood relationship disputes:

Prepared by blood relations: refers to the formation of a kinship with natural blood relations between civil identity of specific legal acts do not have blood relationship based on the people. Including the adoptive parents and adopted children; parents and children relationship.

 

Procedure of judicial cognitive rule: the judicial cognition, refers to the judge for some objectivity significantly or immediately can be confirmed there is no reasonable dispute, no party the burden of proof, namely direct confirmation of the fact.

Here, to provide an information for both parties, is in fact some indisputable, can ask the judge to apply cognitive means to be directly recognized, without having to seek evidence quoting process usually.

 

 

22 legal inheritance disputes:

Statutory succession dispute lawsuit,

Documentary evidence has two kinds: (1) confirm the heir and successor relations documentary evidence. As a marriage certificate, registration or archives, adoption certificate, death certificate etc.. (2) confirm the range of documentary heritage. Such as: no certificate, creditor's rights, housing ownership and land use rights, patent right, copyright, debt instruments, bonds, stocks, bonds, deposits and other documents.

Evidence, generally refers to the heritage itself. Even if the heir dispute disposal object, also can prove the facts of the case evidence. Including housing, currency, gold and silver jewelry, antiques, furniture appliances, production data.

Witness testimony and statements of the parties is mainly used to prove that the heirs and successors who have been formed between the facts, such as the fact that marriage, adoption, alimony.

 

The weight of evidence refers to the evidence: the facts of the case to prove the value and function, namely, the reliability of the evidence, the credibility, admissibility.

Characteristics of witness testimony is unstable and changeable. Because: (1) the inherent characteristics of oral evidence, evidence, each can be affected by the objective factors and subjective factors which led to the unstable and changeable; (2) by the interference of various unwholesome tendencies; (3) the formation process of each testimony, including witness of the facts of the case memory, perception, expression, each stage may appear error.

 

"The federal rules of evidence USA" 401: "the evidence refers to the evidence, with some tendency, makes an existing in the proceedings to be confirmed the facts of the dispute than without the evidence more or less likely."

 

Common law has stipulated the exclusionary rule of hearsay evidence.

Reasons: (1) without the statements of the oath, the lack of authenticity and credibility; (2) cannot cross examination; (3) danger has misinformed, not enough to accept.

Hearsay evidence, refers to the trial and interview, the witness to do other than to the statement of the case facts, including witness reporting others' statement, witness to appear in court the oral presentation and written statements instead of a witness in court statement notes.

 

 

 

Test whether the evidence is relevant, generally consider three aspects: (1) the evidence to prove what facts. (2) evidence has probative force on the facts. (3) the fact whether the substantive issues of the case.

 

The 23 Testament succession procedure:

In the field of marriage and family litigation, many uncertain factors still exist, the moral and legal dispute and the impact on judicial judgment can not be ignored, so the marriage family case, morality and law forever that draw the respective boundaries, litigants should Circumstances alter cases. thinking procedure operation and procedural interest realization degree.

 

 

 In short, the divorce lawsuit evidence has unique characteristics, is a citizen's right of privacy is more, on the other hand, feeling of husband and wife to determine whether the rupture criterion with difficulty; plus Chinese traditional culture and moral idea influence each other, makes the case is complicated, treatment to have a certain degree of difficulty.