When conducting evidence collection activities, lawyers must ensure the process of collecting evidence according to regulations for each type of evidence. The basis for determining evidence depends on each type of evidence source with its own characteristics in determination. To determine which evidence collection measures are necessary and appropriate, lawyers base on the object of proof and the provisions of the substantive law to orient and choose appropriate evidence collection methods. After determining the evidence system, lawyers need to determine additional evidence to collect. Depending on the type of dispute, nature and context of each case, the lawyer decides to apply each evidence collection method or combine multiple evidence collection methods as well as determine the appropriate time limit for each case. Providing collected evidence to the court. Lawyers need to pay attention to the conditions for determining evidence recorded in Chapter VII of the 2015 Civil Procedure Code.
1. For documents with readable content
Lawyers need to guide clients to collect originals such as purchase and sale contracts, property loans, property leases, and property donation contracts. In cases where the originals are not available, copies of those documents can be submitted, but the latter must have them notarized, legally authenticated, or copies provided by a competent agency or organization, certifying that the originals are valid. may be the original or one used as a basis for creating later versions.
In case the document contains readable content written in ethnic minority languages or foreign languages, the lawyer needs to instruct the client to translate it into Vietnamese and attach with these documents a certified Vietnamese translation. legal proof and authentication. In practice, not ensuring the originality of documents with readable content has caused disadvantages for litigants in civil transactions in general and lack of recognition in practice in particular.
In practice, in many cases when requesting the bank to fulfill the guarantee obligation, the guarantee recipient fails to present the original letter of guarantee. There have been opinions that the bank’s refusal to fulfill its guarantee obligation when the guarantee recipient does not present the original is a violation of its obligation because the bank can completely compare it with the original saved at the bank. bank or in the bank’s electronic information system for confirmation. This issue needs to be discussed in terms of both evidence and legal validity of the agreement.
Regarding the value of evidence, the basis for determining evidence depends on each type of evidence source with its own characteristics in the determination process. Applying current evidence regulations, a letter of guarantee is determined to be a readable document. Clause one, article nine of the Civil Procedure Code, year two no. 15, recognizes that documents with readable content considered as evidence must be originals or notarized copies, legally authenticated by agencies or organizations. have authority to provide and confirm. The original version can be banh khuc or the version used as a basis to create the next version. According to this definition, the original is the copy used as the basis for creating copies. Documents with readable content that are considered evidence before money must be originals, also known as originals. In case there is no original, the guaranteeing party can submit copies of those documents, but the copies must be notarized, legally authenticated or copies provided, certified and provided by a competent agency or organization. The bank has the exclusive right to compare the copy with the original before receiving it. In terms of evidence, the guarantee requiring the guaranteed party to present a daisy chain guarantee upon request to perform the guarantee obligation is in accordance with current evidence regulations.
In terms of agreement, the freedom of agreement between subjects in civil transactions in general and guarantee transactions in particular is often a matter of discussion, reaching a consensus on the will of the parties in doing things that arise. change or termination of certain civil rights and obligations. This agreement is not hindered by any subjective or objective factors, except in cases of violation of legal prohibitions or social ethics. Once a transaction has been established, no one has the right to change it, not even the state has the right to intervene and is binding on the participating parties. If there is a change, it can only be due to the agreement of the parties that established the transaction.
Although, in every transaction, the principle of commitment and agreement in accordance with the will is an immutable principle, in practice this is not always the case. In many fields of activity, especially the service sector, transactions are made and repeated between one entity, the service provider, and many other entities, the service recipient and the same service object, the supplier. The service provider has a pre-drafted contract called a model contract which stipulates the terms, while the service recipient only has the right to freely accept the contract or not without an agreement to express their will. own in the contract. Once they have accepted to sign the contract, they are naturally forced to comply with all the terms of the contract. The agreement to present the original is a legal agreement and the receipt of guarantee in violation of this agreement is the basis for determining the violation of the commitment, leading to legal consequences: the guarantor will be subject to sanctions. The financial institution refuses to perform the guarantee obligation due to the violation of the agreement of the guaranteed parties. From this reality, lawyers need to note to their clients that the value of a guarantee lies in the content of the bank’s commitment and the agreement on the conditions for implementing that commitment. The fact that the enterprise is bound by this guarantee agreement to have only one original copy and has no transfer value will result in the loss of the original copy or for some reason being unable to provide the original copy. origin has created a basis for the guarantor to refuse a reasonable and valid obligation.
2. For audible and visible documents
When the client presents in this article, the lawyer needs to instruct the client to present along with a written statement from the person who owns the document about the origin of the document if they recorded it themselves, or if the document is authenticated. acknowledgment from the person who provided the presenter with the origin of that document or a document about the incident related to the audio or video recording. In cases where the person who has the document records it himself, he or she must directly present the origin of the document. In case someone else has provided it, there must be written confirmation from the person who provided it to the presenter about the facts related to the audio or video recording.
Audible and visible documents are a particularly important source of evidence, because documents and papers related to the lawsuit always contain information and events related to the details of the case. civil affairs and affairs. From this source of evidence, it allows the subjects of proof, especially the court, to draw important evidence used to resolve civil cases and matters. The most characteristic feature of evidence drawn from documents and papers containing evidence is that it can be preserved for a long time without changing its content, and can be used by the court many times. When collecting this type of evidence, lawyers need to guide clients in drafting documents confirming origin or documents related to audio and video recording. The content of the document clearly shows the process of forming evidence, or in other words, it is the litigant’s written statement about the incident related to the audio or video recording.
3. For data messages
Data messages are expressed in the form of electronic data exchange, electronic documents, emails, telegrams, telegrams, faxes and other similar forms according to the provisions of law on transactions. electronic.
To identify this evidence and apply appropriate collection measures, lawyers need to refer to the regulations on electronic transactions law and implementation guidance documents. The Law on Electronic Transactions has recognized the legal value of electronic evidence as data messages, electronic signatures have the same evidential value as all other types of common evidence and cannot be denied. solely for the reason that it is an electronic data message or electronic signature.
4. Evidence refers to different objects of the physical world
In civil cases, exhibits must always be original artifacts with specific characteristics related to the civil case to have legal value. Researching exhibits helps lawyers identify unique characteristics. about their shape and nature, from which the necessary evidence can be drawn to resolve civil cases and matters. Evidence becomes a means of proof when these objects are collected, consolidated, researched and evaluated in accordance with the legal order, meeting the three characteristics of objectivity, relevance and legality of evidence. Lawyers not only guide clients to collect exhibits in accordance with the law, but also help clients preserve and preserve them to ensure the specificity of exhibits throughout the process of considering and resolving civil cases and matters. The probative value of evidence is expressed in the specificity of those objects. If the evidence is not well preserved to preserve its uniqueness, the evidence will be lost or have its probative value reduced.
When collecting physical evidence, the lawyer must make a record or describe in detail the form and physical and chemical properties of the object, especially the traces shown on that evidence. For pink objects, it is necessary to consider promptly and fully reflect during the review process by taking minutes, taking photos, and recording videos. For objects that are difficult to move, lawyers can ask the court to consider an on-site appraisal.
5. Regarding the testimony of the litigant and the testimony of the witness
A litigant is a person with rights and interests attached to a civil case or matter. They participate directly in the disputed legal relationship to protect their own rights. The testimony of the litigant and witness is based on the memory of an event, so it is often subjective, so psychological factors, age, and other factors affecting the defendant’s perception of things and phenomena In fact, witnesses are a feature that needs to be carefully considered when collecting and evaluating witnesses’ testimony. The content of the litigant’s testimony and the witness’s testimony containing the truth about the case is considered evidence if it is recorded in writing, audio tape, audio disc, video tape, video disc, device. other equipment of audio, video or oral testimony at trial. Thus, the means of recording evidence and the legal recognition of forms of recording testimony are quite diverse. When collecting this type of evidence, lawyers should note:
– In case the witness makes a self-declaration, the lawyer needs to guide the confirmation of the signature of the competent subject to ensure accurate identification of the identity of the subject writing the declaration when sending the document to the court;
– In case the court takes statements from litigants or witnesses or conducts confrontation, it is necessary to consider the order and procedures for the court to collect evidence for this type of evidence. Lawyers need to consider the order and procedures for accounting of the litigant’s testimony, Article 98 of the 2015 Civil Procedure Code; order and procedures for taking testimonies of witnesses, Article 99 of the 2015 Civil Procedure Code; Confrontation procedures Article 100 of the 2015 Civil Procedure Code.
– In case the testimony of the litigant or witness is presented by audio tape, disc, video tape, disc, etc., there must be a written confirmation of origin or a document about the incident related to the recording, That recording is sent along with audio and video tapes, discs. When searching for this type of evidence, it is necessary to request the court to make a record of receipt of documents and evidence and to preserve and preserve the case file.
Normally, the litigants’ testimonies include two types: testimonies about the details and legal events based on which the litigants submit their requests or protection measures; an admission by one side of the law – an assertion that there are or are not facts that the other side should have proven. Trying to accept from one side the “release” for the other litigant from the burden of proof, however, it does not “release” the court from the responsibility of proof because even though the litigant admits it, the court still has to Only after clarifying can the litigant’s admission be evaluated as evidence.
Unlike the litigant, a witness is someone who knows information related to the lawsuit but has no interest in that lawsuit, because the witness’s testimony often shows more objective elements. Although the witness’s testimony contains a lot of information about details that need to be proven wrongly to help the team find the objective truth of the case, in the process of collecting and researching this source of evidence, Caution is still needed when considering and evaluating. The evidence drawn from this testimony may be misleading and inconsistent with objective reality in cases such as the person being prepared to seduce, bribed, or even threatened or assaulted to bring testifying in favor of a certain party, or in the case of a witness lying and not being able to accurately recall what was witnessed.
When collecting evidence from witnesses’ testimonies, lawyers need to pay attention to psychological factors in the testimonies. It is necessary to evaluate the witness’s testimony with other details and events, especially the contradictions in the witness’s testimony with the testimonies of the litigants in the case file.
6. For assessment conclusions
Expertise conclusions are determined as evidence if the expertise is conducted in accordance with the procedures prescribed by law, specifically recorded in the 2012 Law on Judicial Expertise and Decision No. 85/2013/ND -CP dated July 29, 2013 of the government detailing and implementing measures of the Law on Judicial Expertise.
In civil cases, elucidation of certain features requires the use of necessary expertise with the assistance of an expert. An expert’s conclusion is a scientific conclusion about expertise expressed in the form of a written document or presented at trial, made after studying issues that require the application of professional knowledge. respond to issues requested by the court. In cases where the evaluation of evidence requires the use of specialized knowledge such as determining someone’s handwriting, signature, or fingerprint, or needing to determine the cause of damage in construction, determining DNA, … and according to the agreement and choice of the litigants or at the request of the litigants regarding the matter of soliciting expertise, the court shall conduct solicitation of scientific expertise. This is an important source of evidence as a basis for resolving civil cases. In many lawsuits, expert conclusions are decisive for the court’s decision.
To conclude that the expert examination meets the legal collection procedures, lawyers need to note the following factors: the agreement to select or request the court to request the expert examination must be expressed in writing that can be made. a separate document, can be recorded in the affidavit, can be recorded in the testimony record, or confrontation record. Don’t forget to ask the court to request an expert opinion or request an expert opinion yourself after asking the court to request an expert opinion but the team refuses the litigant’s request. The request for expert examination is made before the court decides to bring the case to first instance trial. The court has the right to issue a decision to request an expert examination when the litigant does not request it but the court will declare it necessary. Lawyers should note that telling the litigant to personally request expertise when the court refuses to request expertise is the litigant’s way of proving. The practice of resolving civil disputes over the past many years has shown that the number of civil cases requiring expertise is increasing due to the diversity of types of cases and subjects requiring expertise as well as the ability to request expertise. Meets technical inspection fields.
In case the expert opinion is deemed incomplete, unclear and violates the law, at the request of the litigant, when deemed necessary, the court shall request the expert to explain the expert opinion and summon the person. The expert comes to the court to directly present the necessary contents. At the request of the litigant or when deemed necessary, the court shall issue a decision on additional expertise in cases where the content of the expert opinion is unclear, incomplete, or when new issues arise related to the details of the case. The case has been previously examined. Re-assessment is carried out in cases where there are grounds to believe that the first assessment conclusion is inaccurate, violates the law, or in special cases according to the decision of the Chief Procurator of the Supreme People’s Procuracy. Chief Justice of the Supreme People’s Court according to the provisions of the Law on Judicial Expertise.
7. For records recording on-site inspection results
Minutes of on-site appraisal results are considered evidence if the appraisal is conducted in accordance with the procedures prescribed by law. Cases where the object of dispute is real estate that cannot be moved or where it is necessary to grasp the scene of the dispute to ensure the court’s judgment and decisions are accurate and guaranteed. Ability to execute judgment. Therefore, if the litigant requests on-site review and appraisal and finds it necessary, the judge will conduct on-site review and appraisal. Specifically, the litigant must file a request to present the basis for his or her request to request the court to consider an on-site appraisal. The court reviews and makes a decision to review and appraise on the spot. This decision is sent to the commune-level People’s Committee or agency or organization where the correct object needs to be considered, delivered or sent to the litigant.
8. For asset valuation results, asset price appraisal results
Asset valuation results and asset price appraisal results are considered evidence if the valuation and price appraisal are conducted in accordance with the procedures prescribed by law. At the request of one or more parties, the court requests an asset valuation organization to conduct a price appraisal. The parties have the right to agree on the determination of asset prices and to select an asset price appraisal organization.
Asset price appraisal is carried out in accordance with the law on asset price appraisal. The results of asset appraisal are considered evidence if the appraisal is conducted in accordance with the provisions of law.
9. For documents recording events and legal acts made on the spot by competent persons
Documents recording events or legal acts made on the spot by competent persons are considered evidence if the document recording events or legal acts is carried out in accordance with the procedures prescribed by law. .
For example, a certificate is a document made by a bailiff, recording events and actions used as evidence in trials and in legal relationships. Because the certificate has evidentiary value for the court to consider when resolving the case and is the basis for performing other legal transactions according to the provisions of law. Because the certificate records the event of a legal act such as: a certificate that authenticates the event or act that occurred at the request of an organization or individual: the event of delivering and receiving money, sending home team notices, collecting debt, establishing contracts, making wills; Violations of the law by others, acts of using the rented house for improper purposes; because the certificate records the current status of linked projects, Ninh Thuan, used to prepare construction documents; used as evidence to request compensation from the insurance agency.
10. For notarized and authenticated documents
Notarized or authenticated documents are considered evidence if the notarization or authentication is carried out in accordance with the procedures prescribed by law. When notarizing, the person performing the notarization must comply with the law on notarization as well as other relevant regulations. Notaries, whether they are state civil servants working at notary offices or notaries working at notary offices, are judicial positions empowered by the state to certify transactions. This regulation aims to clearly affirm the legal value of papers and documents that have been legally notarized and authenticated by state agencies.
11. For other sources
Other sources prescribed by law are determined as evidence according to the conditions and procedures prescribed by the state. Compared to the 2004 Code of Civil Procedure, amended and supplemented in 2011, the 2015 Code of Civil Procedure has removed the regulations on sources of evidence and determined that evidence is customary. With the new provisions of the law, custom can be identified as another person that the law regulates.
