Legal acts, legal facts and documents notarized by legal procedures have special legal effect when used as evidence, and play an important role in safeguarding the legitimate rights and interests of the parties and ensuring the orderly operation of social economy. In particular, the notarization of evidence preservation provides a powerful guarantee for the parties to safeguard their own interests when the evidence may be lost or difficult to obtain. It is an important means to reduce disputes, urge the parties to consciously fulfill their commitments, and stop the occurrence of infringement. Its pre-litigation evidence effect is irreplaceable by other evidence. For notaries, how to ensure the evidential force of notarization and make notarial documents as the basis for the people's court to determine facts is a novel and suspenseful topic under the circumstances that the notarization system is constantly reformed and relevant supporting laws and regulations are not promulgated in time. I think we should do the following at this stage to ensure the evidential force of evidence preservation notarization:
First, strengthen the study and research of evidence law theory, and handle evidence preservation notarization in strict accordance with laws, regulations, rules and notarization procedure rules.
Some people think that because the Notary Law, Evidence Law and other laws have not yet been promulgated, the rules for evidence preservation have not yet been promulgated, and laws, regulations and relevant departments have no specific provisions on notarized evidence, it is impossible for the notary office to guarantee the evidential force of evidence preservation and notarization. I think this idea is not comprehensive enough. Admittedly, it is a fact that the legal profession is less involved in the field of notarization, but there are many provisions on notarial evidence. Here are a few examples: A. Article 67 of China's Civil Procedure Law stipulates that the people's court shall take legal acts, legal facts and documents notarized through legal procedures as the basis for ascertaining facts, unless there is evidence to the contrary that can overturn notarization. This is a principled provision, which establishes the legal status of notarized evidence. B, "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" also has corresponding provisions. Article 9: The parties need not provide evidence, including facts that have been proved by valid notarial documents. Article 77 The people's court may determine the probative force of several pieces of evidence to the same fact according to the following principles: physical evidence, archives, expert conclusions, transcripts of inspection or notarized and registered documentary evidence are generally more probative than other documentary evidence, audio-visual materials and witness testimony. C As early as ten years ago, the Ministry of Justice and the National Copyright Administration jointly issued the Joint Notice on Playing a Notarial Role in Investigating Copyright Infringement Cases. The notice stipulates: 1. If the copyright administrative department requires the applicant and the relevant parties to provide evidence when investigating and dealing with infringement, it shall notarize and preserve the evidence. The copyright administrative department shall investigate and deal with infringement cases on the basis of ascertaining the facts. However, unless there is enough evidence to the contrary to overturn the notarial certificate. 2. The notarization of copyright evidence preservation shall be under the jurisdiction of the notary office where the fact occurred. When handling the notarization of copyright evidence preservation, the notary office has the right to adopt preservation methods such as purchasing or taking physical objects, taking photos on the spot, video recording, questioning witnesses, audio recording or video recording witness testimony, etc. according to the requirements of the parties and the different characteristics of the objects to be preserved, so as to comprehensively and objectively reflect the real situation. Several evidences, expert conclusions, on-site transcripts, inspection transcripts, archival materials and notarized or registered documentary evidence that prove the same fact are superior to other documentary evidence, audio-visual materials and witness testimony. D The Regulations on the Administration of Urban House Demolition issued by the State Council on June 13, 2006 and the Rules on the Adjudication of Urban House Demolition issued and implemented on May 22 this year both stipulate the relevant matters of notarization of evidence preservation of demolished houses.
It can be seen that there are many regulations specifically for notarized evidence. In order to ensure the evidential force of evidence preservation notarization, I think we should first strengthen our study, and then strictly abide by the procedure of issuing certificates. To strengthen study, we should not only seriously study laws, regulations and rules, but also strengthen the study and research of evidence law theory, so as to integrate theory with practice. By discussing the theory of evidence law, we can enlighten and answer some questions that we seldom involve, such as the scope, restrictions and forms of evidence preservation of notaries, which is of great guiding significance to practical work. For example: a, evidence preservation is divided into pre-litigation preservation and litigation preservation in evidence law. Should the notary office participate in pre-litigation preservation or during litigation preservation? Obviously, it is pre-litigation preservation. B, according to the laws of our country, the burden of proof in criminal proceedings is borne by the public prosecution organ, and the burden of proof in administrative proceedings is generally borne by the administrative organ that made the specific administrative act. In civil litigation, the distribution principle of burden of proof is who advocates who gives evidence. Based on this, it can be concluded that the evidence preserved by the notary office should be limited to civil and economic disputes and cannot involve criminal cases. C. After a notary has made clear the types of evidence in China's civil litigation (documentary evidence, material evidence, audio-visual materials, witness testimony, statements of the parties, expert conclusions and inspection records), he can closely focus on the characteristics of evidence and follow certain evidence rules according to different types of evidence in the process of obtaining evidence, and adopt corresponding evidence collection methods to ensure that the preserved evidence conforms to the legal form, preservation measures and types of evidence. D according to the theory of evidence law, several kinds of evidence with the same content are more convincing than an isolated evidence, and the comprehensive evidence is more convincing than a single evidence. If the evidence provided by the parties to the court can reach the standard of "interlocking, mutually confirming and forming a chain of evidence", the probability of winning the case will increase. Therefore, in the process of notarization, notaries should preserve comprehensive evidence as much as possible according to the specific requirements of notarization cases. In the aspect of evidence preservation notarization, there are many examples of preserving witness testimony while preserving physical evidence, documentary evidence and audio-visual materials. E evidence law theoretically divides evidence into legal evidence and illegal evidence. Only by mastering the characteristics and boundaries of legal evidence and illegal evidence can notaries guard against risks and avoid hitting the rocks in the process of applying for a certificate. The above examples show that studying laws and regulations seriously and strengthening the study and research of evidence law theory are the premise and foundation to ensure the notarized evidence force of evidence preservation. In addition, evidence preservation notarization should be handled in strict accordance with the rules of notarization procedure. The behavior of notaries to preserve evidence is essentially different from that of citizens, legal persons or other organizations to collect evidence by themselves. Although China's civil procedure law clearly affirms the right of the parties to collect evidence, citizens, legal persons or other organizations collect evidence by themselves without legal procedures, and their evidential power is flawed. The preservation of evidence by notaries is a very serious legal act with strong procedural nature. Notaries must strictly abide by the provisions of the Rules of Notarization Procedure when handling notarization, otherwise the evidential force of evidence preservation notarization will be difficult to be guaranteed.
Second, pay attention to every detail of the notarization process.
China implements a unified standard of proof, and the litigation standard requires that the facts of the case are clear and the evidence is indeed sufficient. The notarial certificate issued by the notary office is not all the evidence of the whole case, at least part of the evidence of the whole case. The evidence involved in the notarial certificate must be really enough to ensure its objective authenticity. Therefore, in the process of notarization, in order to make the preserved evidence consistent with the object of proof, and ensure the evidential force of notarization. Notaries must do the relevant work thoroughly and carefully, and pay attention to every detail of the notarization process. Specifically, we should pay attention to the following points: (1) Pay attention to relevance. The parties applying for notarization of evidence preservation shall be related to the evidence that needs to be preserved. Preserved evidence may not be used in litigation, but may be needed to protect one's legitimate rights and interests or prevent damage and future disputes. If Party A intends to rent out his house, in order to prevent tenants from damaging the house structure in the future, Party A requests the notary office to keep the evidence of the present situation of his house. In the above cases, I think A is related to the evidence that needs to be preserved, and can be notarized for A. If the party concerned has nothing to do with the evidence that needs to be preserved, the notary should not be notarized for it. Even if a notary issues a notarial certificate for him, the notarial certificate cannot become evidence relative to the party concerned. Relevance in the theory of evidence law means that the notarization matters stipulated in the rules of notarization procedure are related to the legal interests between the parties. If Party B requests to notarize the preservation of network evidence of a website, but Party B has nothing to do with the content of the website, and the content of the website has neither harmed Party B's legitimate rights and interests, nor the possibility of a civil dispute with Party B, the notary office will not accept Party B's application. Party C requests notarization for the preservation of shopping evidence, but Party C has nothing to do with the purchased goods, the goods have not caused damage to Party C, and the producers and sellers of the goods have not infringed or forged them, so the notary office shall not accept Party C's application. (2) Maintain the integrity of the evidence. To maintain the integrity of evidence, I think we should do the following work well: (1) In the process of evidence preservation and notarization, we should collect evidence objectively and comprehensively. We should know the civil legal relationship between the parties and other relevant facts in order to preserve the evidence completely. We can't be influenced by the will of the notary applicant, we can choose and reject the evidence by subjective judgment, and only keep some of the evidence required by the parties that is only beneficial to them. For the preserved evidence, we should not exaggerate or shrink it, let alone replace the objective facts with subjective imagination, and preserve the evidence according to the framework of subjective imagination. For example, when counting security items, it is necessary to truthfully count and record the number of items one by one. Keep keen observation and analysis, don't make an excuse that this thing is worthless and that thing is not important, and make a selective inventory. When taking photos and videos, we should pay attention to maintaining the integrity and integrity of the evidence. Don't shoot here and there, record a paragraph here and a paragraph there. (2) Properly keep and handle the preserved evidence materials. To maintain the integrity of evidence, we must first prevent the lost, transferred or replaced evidence materials. Since most of the evidence that the parties apply for preservation may be lost or difficult to obtain in the future, notaries should properly keep and handle the evidence materials notarized by evidence preservation. When preserving evidence, the notary office shall strengthen the custody measures for the photos and documentary evidence taken; Audio-visual materials such as floppy disks, audio tapes and video tapes should be backed up and copied regularly to prevent the loss of evidence. Secondly, we should protect the evidence materials from being destroyed. Undamaged means keeping the evidence preserved by notaries intact and preventing the evidence materials from being transferred or replaced. Because the probative power of evidence depends to a great extent on the original state when the notary keeps the evidence, if the original state is destroyed, the integrity of the evidence will no longer exist. (3) conducting necessary examination and judgment. The author believes that the examination and judgment in the process of evidence preservation notarization can be divided into the first examination and judgment and the examination and judgment in the process of handling. A. Pre-examination and judgment refers to that the notary pre-examines the information provided by the parties and the relevant information of the evidence to be preserved before implementing the specific operation of evidence preservation, and judges whether to implement the evidence preservation behavior and takes relevant measures. When handling evidence preservation notarization, it is very important to examine before judging. It is of great practical significance for notaries to examine, judge and evaluate the risks in advance, so as to reduce the risks of notarization, ensure the evidential power of notaries and avoid the infringement of notaries and falling into the "evidence trap". In mid-March this year, a company in Guangzhou came to our office to apply for notarization, demanding that the lock of a shop in Liwan District, Guangzhou be pried open and the evidence be kept. In the process of pre-examination, the author found that the company has no property right to the shop at all, and there is no lease relationship between the two parties. Prying open the door lock will infringe on the legitimate rights and interests of the relevant businesses, so the evidence was not notarized to avoid infringement. When handling evidence preservation notarization, the notary should first examine and judge before implementing evidence preservation behavior. Don't compromise the parties and reverse the order, implement evidence preservation before reviewing, otherwise it will easily bring bad consequences to the notary office. B. The review and judgment in the process of handling refers to the review and judgment made by notaries according to the implementation of preservation behavior in the process of handling evidence preservation notarization. The examination and judgment in the process of handling is equally important, which is related to the substantive issues such as whether the notary's evidence preservation behavior can be implemented and whether it is appropriate to continue to be implemented. Because in the process of implementing the preservation act, the notary has a deeper understanding of the notarization case and has a full perception of whether the preservation act can be implemented and whether it is appropriate to continue to be implemented. The examination and judgment made at this time directly affects the termination and continuation of preservation behavior and the validity of evidence. Notaries should keep a clear head in the process of preserving evidence and make necessary examination and judgment, which is not influenced by the will of the parties.
Third, use advanced scientific and technological means to enhance the evidential power of notarization.
Modern science and technology have exerted a wide influence on the law of evidence, adding many new concrete objects of proof. The continuous development of electronic audio-visual and information technology has promoted the emergence of new types of evidence, increased the content of the original evidence, increased and upgraded the role and status of some evidence, developed techniques and methods for collecting and reviewing evidence, and changed the traditional evidence rules. Therefore, notaries should renew their ideas, keep pace with the times, make full use of advanced electronic audio-visual equipment, and enhance the evidence strength of evidence preservation notarization. Advanced scientific and technological means play an irreplaceable role in the process of notarizing evidence preservation. Due to the comprehensive, vivid, direct, accurate and scientific characteristics of electronic audio-visual materials such as audio-visual materials, video materials and computer materials, the evidential power of evidence preservation notarization is greatly enhanced. The evidence preserved by the notary through the above-mentioned audio-visual materials directly comes from objective things, which is an intuitive reflection and can be directly used as litigation evidence. Take the first notarization of mobile phone information evidence handled by our institute last year as an example. The applicant, Miss Gu, failed to provide relevant written evidence because her husband's lover kept insulting, slandering and harassing him through mobile phone information, which delayed her determination to safeguard her legitimate rights and interests according to law. Under the guidance of relevant personnel, she came to our office and asked for evidence preservation of the information received by the mobile phone. When handling, notaries can usually use the following methods to reflect the information displayed on the mobile phone screen. First, only the operation sequence and the information displayed by the mobile phone in the notarial certificate are expressed in words. Second, the information displayed on the screen of the fixed mobile phone is taken as an attachment of the notarial certificate; In the process of notarization, the whole process of operation was recorded with a camera. It can be seen that the second method can directly and intuitively reflect the information content displayed on the mobile phone screen, which is more evidential. Therefore, we chose the second way when handling the above notarization. After many attempts, we overcame the problem of fluorescence reflection on the screen of the mobile phone, and finally fixed the information of the mobile phone with advanced electronic audio-visual equipment. It is understood that the evidence preserved by the above notarial certificate has been adopted by the court.
Fourth, pay attention to the expression of notarized testimony.
Notary testimony is the embodiment of the notary's achievements in preserving evidence, the comprehensive reflection of the process of preserving evidence and the concentrated expression of notarial evidence force. Therefore, the importance of notarized testimony is self-evident, which directly affects the evidential effectiveness of notarization. In order to ensure the evidential force of evidence preservation notarization, I think the expression of notarized testimony should be: (1) reasonable choice, highlighting the evidential force. The applicant shall make a concrete analysis of the notarization case of evidence preservation, carefully analyze every link and detail, reasonably select the relevant contents in the notarization testimony, and pay attention to the contents that highlight the evidential force. Combined with the notary's experience, writing level, legal knowledge, notary business knowledge and logical analysis ability, the relevant elements are integrated to produce a notarial certificate with evidence effect. (2) Correctly reflect the causal relationship of the development of things and make the testimony structure rigorous and consistent. If the testimony structure of the evidence preservation notarial certificate is not rigorous and the main line used to run through the full text is uncertain, it will be inconsistent, which will directly affect the credibility of the notarial certificate and even affect the evidence force. Take the notarial certificate of evidence for the preservation of demolished houses as an example. If the notarial certificate does not determine a reasonable main line for the notaries, photographers, appraisers and witnesses involved in the case to run through the behavior of the relevant personnel, it will make the notarial certificate as a whole unclear, and it will be impossible to achieve a rigorous and consistent structure. Due to inconsistency and incoherence, the evidential force of notarial deed will be affected. (3) The testimony should be clear and specific. For the notarized testimony of evidence preservation, the language requirements should be more accurate, concise, concise and simple. It is necessary to truthfully describe the true face of the object to be preserved, and it is not allowed to exaggerate, compare or render, and the contents of the notarial certificate should be consistent with the object to be proved. Only in this way can we improve the evidential force of notarial deed and make notarial deed reach the standard stipulated in the Civil Procedure Law. (4) Be logical and persuasive. The evidential validity and logicality of notarial deed are closely linked, and a notarial deed lacking logicality is not rigorous and convincing at all. Moreover, the lack of logic will cause inconsistency and give people an overall messy impression. Therefore, the testimony of the evidence preservation notarial certificate should have rigorous logical thinking, accurately grasp the authenticity of the object to be certified, and every sentence in the notarial certificate should be based, and anything without basis should not appear in the testimony. The conclusion of notarization should have sufficient factual and legal basis and stand up to logical reasoning, so as to ensure the evidential force of notarization. (5) Make full use of the flexibility of necessary notarial certificates to enhance the evidential force of notarization. This flexibility is reflected in the determination of elements of notarial deed and the selection of selected elements. The essential notarial certificate gives notaries more freedom and thinking development space, so that notaries can freely load the collected relevant materials and express the most favorable contents for notaries who preserve evidence. Therefore, notaries should make full use of the flexibility of necessary notaries, enhance the evidential force of notarization, and use accessories and other auxiliary means (such as recording, video recording, taking photos, and sealing items). ) to confirm the testimony of notaries, so as to enhance the evidential power of notaries.
With the development of China's social economy and the continuous improvement of the legal system, citizens' awareness of rights protection is increasing day by day. As one of the weapons of rights protection, evidence preservation notarization is the most effective evidence. Here, I dare to predict that with the increase of China citizens' foreign economic exchanges, the enhancement of people's legal awareness, the establishment of the legal status of the notary industry and the continuous development of the notary team, evidence preservation notarization will occupy an important position in China's evidence system and will show its talents on the stage of displaying all kinds of evidence.