In China’s judicial practice, recording is a common way of collecting evidence. If the private conversation recording without the permission of the other party satisfies certain conditions, the court may admit it as evidence.
I. Are secret recordings admissible in Chinese courts?
There are eight types of evidence stipulated in Article 63 of the Civil Procedure Law (CPL) of China, among which the recording evidence is incorporated in Type 4 “audio-visual materials”. In addition, in the Succession Law of China, there are also provisions on “will made by recording”. Therefore, recording falls under the types of evidence permitted by the law.
Although recording can be used as legal evidence, in practice, recording is often made secretly without any awareness of the other party. As for the secret recording, the attitude of Chinese courts has made the shift from negative to positive.
Previously, Chinese courts held that secret recordings were illegal and thus could not be used as evidence at all. [1]However, such a rule excessively limited the means to collect evidence by the parties and therefore had been challenged and criticized by many. In 2001, Chinese courts relaxed the restrictions on secret recording, and admitted its status as evidence provided that it neither infringed upon the legitimate rights and interests of others nor violated the prohibitive provisions of the law. By 2015, secret recording can generally be used as evidence unless it “severely” infringes on the legitimate rights and interests of others, violates the prohibitive provisions of the law, or is collected in a way that violates public order and good morals. [2]
In addition to the above criteria, some judges have also proposed the following points:
1. The party concerned shall be present at the time of recording, and it is better that the party himself/herself makes the recording personally.
2. The secret recording should not be made in the place where recording is prohibited, nor by fraud or coercion;
3. Generally speaking, the recording alone cannot be used as the basis for finding the facts, and it must be used together with other evidence to achieve the effect of proof. [3]
II. What kind of recordings is unlikely to be admitted?
According to our experience, in the following situations, the recordings are likely to be dismissed:
1. If someone submits a recording of a conversation where all the participants have agreed “no recording” at the beginning, the recording of this kind will very much likely be deemed as illegal for violating the right of privacy;
2. Where the recording contains fraud and coercion-related contents;
3. Where the recording is collected in a way that may violate public order and good morals. For example, in a divorce case, one party instigates a kid to talk with the other party and record the conversation secretly;
4. Where the recording is collected by illegally using professional monitoring equipment;
5. Where the recording is collected by installing equipment in other’s private space (such as a bedroom or a car);
6. Where the recording is collected in a place where the same is prohibited (such as in a courtroom);
7. Where the recording is collected by hacking into a computer or a mobile phone through Trojan program.
III. What is ideal recording evidence like?
Ideal recording evidence often has the following characteristics:
1. The recording should preferably be made by the parties concerned personally;
2. The basic information of the conversation such as the time, location and the identities of the participants should be clear;
3. The tone in the conversation should better be calm;
4. The conversation should better focus on the disputed facts and avoid pointless argument;
5. The original media (such as recording pen and mobile phone) shall be well preserved;
6. If the recording is highly important, it is recommended to engage a notary to notarize the recording process.
Finally, we need to remind the readers that documentary evidence is still the most important evidence in China’s judicial practice( See the post Documentary Evidence - The King of Evidence in Chinese Civil Litigation), while recording evidence is generally used as auxiliary evidence.
References:
[1] 《最高人民法院關(guān)于未經(jīng)對(duì)方當(dāng)事人同意私自錄音取得的資料能否作為證據(jù)使用問(wèn)題的批復(fù)》（法復(fù)[1995]2號(hào)）曾規(guī)定“未經(jīng)對(duì)方當(dāng)事人同意私自錄制其談話(huà)，系不合法行為，以這種手段取得的錄音資料，不能作為證據(jù)使用。”
[2] 《最高人民法院關(guān)于民事訴訟證據(jù)的若干規(guī)定》中“以侵害他人合法權(quán)益或者違反法律禁止性規(guī)定的方法取得的證據(jù)，不能作為認(rèn)定案件事實(shí)的依據(jù)。”和《最高人民法院關(guān)于適用<中華人民共和國(guó)民事訴訟法>的解釋》第106條關(guān)于“對(duì)以嚴(yán)重侵害他人合法權(quán)益、違反法律禁止性規(guī)定或者嚴(yán)重違背公序良俗的方法形成或者獲取的證據(jù)，不得作為認(rèn)定案件事實(shí)的根據(jù)”
[3] 案號(hào)：一審（2006）宣民初字第00745號(hào)；二審（2006）一中民終字第7422號(hào)。王磊（二審主審法官） 《人民司法（案例）》 第75頁(yè) 2008年
案號(hào)：一審（2006）嶗民三初字第241號(hào)。朱鐵軍 《人民司法（案例）》 第78頁(yè) 2008年
Photo by Allec Gomes(https://unsplash.com/@allecgomes) on Unsplash.
Contributors: Chenyang Zhang 張辰揚(yáng) , Xuan Zhao 趙暄
