Meet dispute or not satisfactory job,
Does recording of your meeting privately collect card?
Top people court ever saved senior people court to Heibei 1995 " the written reply to a subordinate body that the data that about agreeing with privately transcribe without the the opposing party its talk obtains cannot use as evidence " middle finger goes out " agree with privately transcribe without the the opposing party its talk, fasten illegal conduct. Fasten illegal conduct..
But first instance of a classics of civil case all previous of Guangdong Zhuhai, 2 careful and two arraign, court of final and top people is collected in arraign believed the recording of a paragraph of privately that just offers when the thing, adjudicative result is final " changeover " . So privately recording is in what circumstance subordinate is lawful, can be you collected to believe by the court after dispute happening then for evidence?
Case introduction
Zhang Mou fierce is in all the time in recent years engage in a lawsuit, a when this and he signed with hero of mercantile Chen Mou 2008 " cooperative agreement " about.
Chen Mou hero is Zhuhai the partner that a content sheds integrated market firm. On March 20, 2008, zhang Mou fierce and Chen Mou hero manage this content to shed integrated market project to sign with respect to collaboration " cooperative agreement " .
Bilateral agreement: Zhang Mou fierce is in charge of assisting Chen Mou hero to begin the harmonious work that concerns external, the support that strives for so that to each relevant government sector is opposite this to look, assure Chen Mou hero to begin professional work smoothly below the premise that manages legally; Chen Mou hero is in charge of the particular operation of the project, assume legal responsibility external...
The agreement agrees the 4th times, chen Mou hero agrees to share out bonus with regarding Zhang Mou as the project of fierce under 60 million yuan, be in since day of this agreement become effective inside 7 years in installment paid, among them before December 31, 2010, chen Mou hero should pay 60 million yuan to Zhang Mou fierce at least 25% namely 15 million yuan. After both sides returns conventional agreement become effective, two people 2001 at this point the relevant agreement that the project signs becomes invalid.
However, in November 2010, zhang Mou fierce reachs Zhuhai city sweet continent district court is sued, the request adjudicates Chen Mou hero is fulfilled lawfully expire pay compulsory, pay due 15 million yuan of interest that reach exceed the time limit to its.
The court decision is disparate
In lawsuit, both sides is right " 2001 at this point the relevant agreement that the project signs becomes invalid " allegation is different. Zhang Mou fierce calls its and Chen Mou hero 2001 around is known, and Chen Mou hero says was 2006 around understanding.
Sweet first instance of continent district court thinks, of Zhang Mou fierce sue accord with agreement to decide, adjudicate Chen Mou hero should pay Zhang Mou fierce 15 million yuan reach accrual of exceed the time limit. 2 adjudgement maintained Zhuhai quadrangle definitely this result. During 2 careful, zhang Mou fierce is returned with Chen Mou sue to Zhuhai quadrangle for male primary beak a contract, the requirement removes " cooperative agreement " , sentence hero of your Chen Mou to pay the rest 45 million yuan reach accrual of exceed the time limit.
Chen Mou hero refuses to obey adjudicative appeal, arraign of ruling of Guangdong tall courtyard this case, made commute, cancel former one, 2 careful court decision, reject piece of some fierce appeal to beg.
Recording dash forward now
This falls, zhang Mou fierce refused to obey. He says to supreme court appeal, afore-mentioned change the original sentence are built namely since 2001 to two people coexist add the basic fact that collaboration of 8 years concerns was not made examine. Additional, new evidence can prove the cooperative fact of two worlds further.
After the supreme court hears appeal, ruling arraign this case. On April 26, 2016, this case in the supreme court court of the first circuit opens careful.
During supreme court rehear, zhang Mou fierce referred a recording: The Zhang Mou fierce of the daughter transcribe of Zhang Mou fierce and Chen Mou are male on June 16, 2012 14 when come 50 minutes 17 when in Shenzhen city 5 continent the conversational recording of hall of guesthouse first floor is big coffee, plan to prove the cooperative relation between two people is come from 2001, the achievement that Chen Mou hero recognizes piece of some fierce to in what do for project company place each work and be formed to working place gives hero of affirmative, Chen Mou wishs to pay 35 million yuan pair of price to Zhang Mou fierce, fall by 60 million yuan namely 35 million yuan, 60 million yuan fasten the equity rights and interests that agreed 2001 to wait to valence.
Ending changeover
The court undertook broadcasting to this recording on the court.
The supreme court thinks, this recording fastens two people " cooperative agreement " the conversational process that the both sides after generating controversy negotiates, can mirror the relevant matters concerned of bilateral collaboration objectively, closely related the basic fact with this case, ought to adopt.
And Guangdong tall courtyard is in when the case of 45 million yuan of mark investigates other case, think, this recording evidence is in what did not obtain Chen Mou hero to agree the circumstance issues home remedy transcribe, this courtyard basis " the data that top people court obtains about agreeing with privately recording without the the opposing party whether the written reply to a subordinate body that uses an issue as evidence " (law answer [1995]2 date) about " agree with privately transcribe without the the opposing party its talk, fasten illegal conduct, with the recording data that this kind of method obtains, cannot use as evidence " regulation, maintain this recording not to have proof power.
The supreme court thinks, the basis carried out 2002 " a certain number of regulations of top people court about civil suit evidence " in " with enroach on other legitimate rights and interests is lawbreaking perhaps prohibit the evidence that the means that the gender provides obtains, the basis that cannot regard cognizance case as the fact " regulation, law answer [1995]2 date give an official indicates " agree with privately transcribe without the the opposing party its talk, it is illegal conduct " be recorded secretly and encroach the opposing party or someone else what ought to understand to undertake to tie the privacy place to involving a the opposing party the behavior of legitimate rights and interests.
Job procedural law explains the 106th about " beneficial, lawbreaking to counterpoising legally with other of serious enroach on the evidence that prohibits the gender sets or violating Gong Xuliang badly to the method of common is formed or be gotten, the basis that must not regard cognizance case as the fact " the regulation made clear this judicatory spirit.
"In this case, what Zhang Mou fierce and Chen Mou's male talk fasten in hotel lobby is public undertake, recording is fastened in this public transcribe, there also is someone else outside the daughter that divides piece of some fierce attendant, did not encroach the legitimate rights and interests of anybody, reason should grant to adopt to this recording evidence, serve as hold this record the basis of relevant fact. " the supreme court adjudicated cancel primary go into effect adjudicates a few days ago, keep the civil court decision that Zhuhai quadrangle makes.
Top people court adjudicates a summary (2015) civilian carry a word the 212nd
The recording evidence that submits about Zhang Wenwu and character of testimony testimony of a witness whether the problem that collect a letter
In this case review process, the Zhang Wenwu that Zhang Wenwu refers transcribe of its daughter Zhang Ying to this academy and old annals hero visit Shenzhen town at was in Guangdong 2:50 on June 16, 2012 afternoon 5 continent the conversational recording of guesthouse first floor is big coffee hall and city of Zhuhai of former Guangdong province are sweet continent area director of farming fishing bureau, plan to prove this case " cooperative agreement " the cause and effect of signed whole process and bilateral collaboration matters concerned, namely Zhang Wenwu and the cooperative relation with old male annals result from 2001, each work that Chen Zhixiong approves Zhang Wenwu to become place for project company is right the conventional achievement that working place forms gives approbate, chen Zhixiong hopes to change 60 million yuan of accrual to be 35 million yuan, 60 million yuan of disbursement that are 40% rights and interests are right valence, namely Chen Zhixiong chose 2008 relatively pair of price with equity low value 60 million yuan.
This academy thinks, " top people court about code of civil law of applicable < People's Republic of China > the explanation that tries a certain number of monitor questions " the 10th the first the first regulation: "The evidence of new discovery after before careful of first trial front courtyard ends, careful of front courtyard of objective already existence ends " the new evidence in belonging to rehear.
In careful of front courtyard of this academy rehear, zhang Wenwu is right of recording evidence obtain pass and to where this case is in the ability when Xiang Andong saves senior people court to apply for rehear puts forward this evidence to make an explanation explain. Zhang Wenwu is narrated calling this recording is to be in Shenzhen city 5 continent hotel is old coffee hall is obtained, because Zhang Wenwu is in " cooperative agreement " in what involve 15 million with 45 million mark two cases first instance all wins the lawsuit, 2 careful also are the case of 15 million yuan of mark win the lawsuit, case outcome proof already referred to first trial court according to its " cooperative agreement " wait for evidential material already the goal that enough achieves sufficient quote, did not think of to prove relevant case fact with this recording evidence so.
This academy thinks explanatory specification of Zhang Wenwu accords with logic, put in objective rationality, zhang Wenwu is nonexistent the action that hides significant evidence intentionally, this evidence is submitted when Zhang Wenwu is saving senior people court to apply for rehear to Guangdong also nonexistent gross error.
Above all, although this recording evidence that Zhang Wenwu submits forms Yu Yuan before careful of careful front courtyard ends, but Zhang Wenwu reachs additional record in the first instance lawsuit of this case of the lawsuit of 15 million yuan of mark one, 2 careful all are win the lawsuit, this evidence reachs additional record in this case first trial to Zhang Wenwu of the case of 15 million yuan of mark one, referred necessity is not had in the litigant process of 2 careful, i.e. Zhang Wenwu is in subjective what go up and submit evidence without exceed the time limit is intended.
Next, this recording evidence is Zhang Wenwu and Chen Zhixiong " cooperative agreement " the true record that the after paying generation controversy both sides of relevant money communicates a talk, its are obtained not the legitimate rights and interests of enroach on Chen Zhixiong or someone else, also have no lawbreaking the case that prohibits the gender sets or violating Gong Xuliang convention. Basis " a certain number of regulations of top people court about civil suit evidence " the 68th: "Counterpoise legally with enroach on other beneficial is lawbreaking perhaps prohibit the evidence that the means that the gender provides obtains, the basis that cannot regard cognizance case as the fact " regulation, evidence is not the recording that Zhang Wenwu refers to close right increase with enroach on other lawbreaking perhaps prohibit the means that the gender provides is obtained, this recording evidence can serve as reason hold this record the basis of relevant fact.
Again, this recording evidence fastens Zhang Wenwu and Chen Zhixiong " cooperative agreement " the conversational process that the both sides after generating controversy negotiates, can mirror the relevant matters concerned of bilateral collaboration objectively, closely related the basic fact with this case, ought to adopt. When review of senior people court is examined, Guangdong province thinks, this recording evidence is in what did not obtain Chen Zhixiong to agree the circumstance issues home remedy transcribe, this courtyard basis " the data that top people court obtains about agreeing with privately recording without the the opposing party whether the written reply to a subordinate body that uses an issue as evidence " (law answer [1995]2 date) about evidence obtain want above all lawful, the evidential talent that acquires through legal approach only serves as the basis of decide on a verdict. Agree with privately transcribe without the the opposing party its talk, fasten illegal conduct, with the recording data that this kind of method obtains, cannot use the provision of ' as evidence, maintain this recording evidence not to have proof power.
This academy thinks, the basis carried out on April 1, 2002 " a certain number of regulations of top people court about civil suit evidence " the 68th about " with enroach on other legitimate rights and interests is lawbreaking perhaps prohibit the evidence that the means that the gender provides obtains, the basis that cannot regard cognizance case as the fact " regulation, law answer [1995]2 date give an official indicates " agree with privately transcribe without the the opposing party its talk, it is illegal conduct " be recorded secretly and encroach the opposing party or someone else what ought to understand to undertake to tie the privacy place to involving a the opposing party the behavior of legitimate rights and interests.
The code of civil law explains the 106th about " beneficial, lawbreaking to adding up to right with other of serious enroach on the evidence that prohibits the gender sets or violating Gong Xuliang badly to the method of common is formed or be gotten, the basis that must not regard cognizance case as the fact " the regulation made clear this judicatory spirit.
In this case, what Zhang Wenwu and the talk with old male annals fasten in hotel lobby is public undertake, recording is fastened in this public transcribe, someone else also is had no outside the daughter that divides Zhang Wenwu attendant, did not encroach the legitimate rights and interests of anybody, reason should grant to adopt to this recording evidence, serve as hold this record the basis of relevant fact. Guangdong saves senior people court to did not grant to maintain to this evidence, attribute applicable law mistake, this academy gives correct.
Recording of the privately below what circumstance is belonged to illegal?
"Whether can be privately recording maintained to be legal evidence, whether is the key should see recording with serious enroach on other counterpoises legally beneficial, lawbreaking the method that prohibits the gender sets or violating Gong Xuliang convention badly is formed or get. " Meng Jiang of deputy secretary-general of seminar of law of associate professor of courtyard of law of college of Beijing grain industry, China civilian suffers when visitting, say.
He says, generally speaking, the element of lawful sex includes influence recording:
It is circumstance and method.
Be in public taking privately recording, its are lawful the gender is more outstanding, if be patted in order to steal, record secretly, to the secret such as virus of mobile phone establish filch means is obtained or obtain in the conversational space with others close illicit, be not collected to believe the possibility that is legal evidence bigger.
2 it is content.
If talk to involve individual or other privacy purely, and have nothing to do with the case, so privacy right wants by first protection; If stole itself of the person that record to also share a conversation, and topic and case are concerned, the possibility that recording is held to be evidence is large.
3 it is the general requirement that should accord with evidence.
Want for instance true, should refer inside quote deadline etc.
"Still have a bit, if attendant person state at the beginning ' do not want recording ' , someone else also agrees, after this is like somebody privately recording, make pair of agreements at least disobey, be maintained illegal possibility is larger. Conversely, if recording person thing first signs understands recording act, the other side did not object, that regards as obtained the other side to agree, be maintained lawful possibility is large. Be maintained lawful possibility is large..
Reprint from small gain of sina of Chinese general law
Date of public of small letter of judicatory of smooth pond of small gain of sina of smooth pond judicatory averages number of public of small letter of pond general law
