Examining the impact of cleanliness inspection on the probative force of notarial certificates

With the advent of the 5G era, the Internet (mobile Internet) industry is developing rapidly and the competition is fierce. New technologies and new ideas are emerging in an endless stream. At the same time, new problems and new disputes are constantly emerging. New forms, new formats and new products in the field of intellectual property rights are also emerging. It is precisely because there is no precedent to follow in the past that disputes between various subjects are often resolved by civil litigation in most cases (this article involving criminal cases will not be considered for the time being). In these intellectual property civil litigation, there is a saying that "80% of intellectual property litigation is evidence", and notarial deed as the main form of evidence is widely used by litigants, almost becoming the "standard" of such litigation ". However, in judicial practice, some notarial certificates do not clean the notarial environment during the production process, which leads to various doubts, and the courts have different opinions on the probative force of such notarial certificates.

Article 69 of the "the People's Republic of China Civil Procedure Law" stipulates: "The people's court shall use the legal facts and documents that have been notarized through legal procedures as the basis for determining the facts, unless there is evidence to the contrary sufficient to overturn the notarized certificate." It can be said that the notarial certificate has a legal advantage over the general evidence, but it is not foolproof. With the development of network technology, the impact of the cleanliness of the notarization environment on the probative power of notarial certificates cannot be ignored. The cleanliness of the notarization environment generally includes: first, whether the notarization equipment of the notary office, such as computers, mobile devices, U disks, mobile hard disks, etc., has been used; if not, whether the equipment provided by the notary office has been formatted; Second, whether the network provided by the notary office is used; third, whether the cookie has been deleted; fourth, whether the software used in the notarization process was downloaded and installed after the device was formatted... In short, it involves whether the notarization is carried out in a clean environment without interference from other possible factors.

According to the summary of practical experience, there are the following four situations, which may lead to differences in the results of notarization in clean and unclean environments: First, because the browser can still access the original web pages when offline, these web pages are temporarily stored in the hard disk as temporary files. If computers, mobile phones and other devices are not connected to the network, the object of preservation may be a web page that has been saved or even tampered with in the hard disk of the device. Second, although computers, mobile phones and other devices have been connected to the Internet, they can change the IP address pointed to by a specific domain name through prior operations, such as modifying host files, so that their tampered web pages can be displayed under any web address. Third, due to the wide-area nature of the network, the transmission of servers may be complicated, modifying or destroying the server in any of these links can make the content of the web page presented contrary to the facts; fourth, by installing Trojan software in computers, mobile phones and other devices or hacking into the network system used for evidence preservation notarization, Thus illegally controlling the notarization process. ①

In judicial practice, due to the cleanliness of the notarization environment, there are many cases in which notarial certificates are not accepted. Among the cases that the author inquired about, the earliest one involving this issue was the Civil Ruling No. 926 of the Supreme People's Court (2008) Minshen Zi. In the civil ruling, the Supreme Court held that the notarization was carried out in the place provided by the agent entrusted by the plaintiff, and the computer and mobile hard disk used for notarization were also provided by the agent, and the specific operation was carried out by the agent, the notarial certificate does not record whether to check the cleanliness of the computer and the mobile hard disk, and technically, there is a possibility that a target web page can be set in the local computer in advance, and when the computer accesses the Internet, the virtual target web page and other real Internet web pages coexist at the same time. Therefore, under the condition that it does not record whether to check the cleanliness of the local computer used for notarization, although the notarial certificate can prove that the act recorded in the notarial certificate occurred in front of the notary, it is not enough to prove that the act occurred in the Internet environment, that is, it is not enough to prove that Zigong Netcom has provided online broadcast services of the film and television works involved in the case on the website.

After this case, the Third Civil Division of the Zhejiang Higher People's Court issued the "Several Answers on the Trial of Internet Copyright Infringement Dispute Cases". On how to review and approve the notarized evidence of Internet infringement, the opinions are clarified in Article 17: "According to the Supreme People's Court (2008) Minshen Zi No. 926 Civil Ruling, since it is technically possible to achieve the coexistence of virtual target web pages and real Internet web pages at the same time, the people's court shall, according to the specific conditions of the network environment and network evidence, according to the authenticity and integrity standards of electronic evidence review, examine whether the network information of the notarization certificate comes from the Internet rather than the local computer, and decide on this basis whether it can be used as the basis for the decision. For notarization is carried out in places other than the notary office, the computer and mobile hard disk used for notarization are not controlled by the notary before notarization, and the notarization certificate does not record whether the cleanliness of the computer and mobile hard disk is checked, although such notarization certificate can prove that the behavior recorded in the notarization occurred in front of the notary, it is not enough to prove that the behavior occurred in the Internet environment. However, although the notarization evidence of network infringement provided by the plaintiff was obtained in a place other than the notary office, if the defendant has no objection to the evidence and does not provide contrary evidence, the people's court generally does not take the initiative to examine the network infringement evidence, and it can be determined that it has the effect of proof." ③

In 2011, the Shandong Higher People's Court also issued the "Guiding Opinions on the Trial of Online Copyright Infringement Disputes (Trial)", in which the third part of the notarized evidence and electronic evidence review clearly pointed out that "10. To judge the probative power of notarized evidence, the people The court should take the initiative to review whether the network information of the notarized certificate comes from the Internet instead of the local computer, and deal with it separately according to different situations. If the notarized document records do not rule out that the notarized information comes from computer pre-stored or other infringing pages, the notarized document shall be deemed to have major defects and cannot be used as valid evidence.

11. The computer used in the notarization act is in the possession of another person or party other than the notarization institution, and the notarization certificate does not record whether to check the cleanliness of the computer and other external storage devices, which is not sufficient to prove that the network information obtained by the notarization comes from the Internet.

13. If there is an obvious contradiction between the notarization process recorded in the notarization certificate and the accompanying audio and video recordings of the same period, or the notarization process recorded in the notarization certificate is incomplete, or there are other obvious defects, which are sufficient to affect the judgment of the authenticity of the facts, the notarization certificate cannot be used as the basis for determining the facts of the case." ④

In 2012, the Supreme People's Court held in civil rulings (2012) Minjian Zi No. 37 and No. 38 that the notarial certificate provided by the complainant and the "on-site record" could not prove whether the computer hard disk used in the notarization had been checked for cleanliness and whether the computer hard disk had been pre-installed with contents related to the case, while the notarial certificate provided by the respondent China Telecom Company proved that it was not connected to the Internet, technically, there is the illusion that you can pre-set a target web page on your local computer and also create the illusion of online playback of the movie involved. Therefore, the above-mentioned evidence submitted by the complainant cannot fully prove that China Telecom has committed an infringement of the right of information network dissemination. ⑤ Later, in the 2016 case of Guangzhou Duo Yi Network Co., Ltd. v. Guangzhou Netease Computer System Co., Ltd. in the unfair competition dispute ⑥, the probative power of the notarial certificate was also affected by the cleanliness of the notarial environment.

Of course, this question of the notarization environment is not clean, the defendant needs to do the extent of the burden of proof is to explore. In the above-mentioned cases, not all the defendants have adduced counter-evidence when challenged. The author believes that the cleanliness of the notarization environment itself is one of the requirements for the production of notarial certificates. The plaintiff should provide evidence on the facts of infringement to be proved, and should ensure that the notarial certificate submitted to the court is true, legal and valid, and can fully prove the facts to be proved. And what counter-evidence does the defendant need to cite if he questions the unclean notarization environment? If the defendant does not demonstrate the four possible situations in this article that lead to the difference between the notarization results in a clean and unclean environment, can the plaintiff be exempted so that a notarization of the unclean environment becomes the basis for determining the fact of infringement? This issue may be left for later analysis and judgment in specific cases.

In the daily litigation work, the author has also encountered that the notarial certificate provided by the other party has not been checked for cleanliness, but the other party claims that this is only the notary's omission, and it can contact the notary office to issue the certificate again. In this regard, the Supreme People's Court has been involved in this issue as early as (2013) Minshen Zi No. 469 Civil Ruling. The Supreme People's Court believes that from the content of the notarial certificate, although the office computer of the notary office is used during notarization and preservation, the notarial certificate does not record that the connection status of the computer to the Internet and the cleanliness of the computer burning CD have been checked before the relevant operation, at the time of notarization, the operator was not the staff of the notary office, but the entrusted agent of the Chinese online company. At that time, the network environment was not controlled by the notary, and technically there was the possibility of setting up a target web page in the local computer in advance. During the second instance, the Chinese online company submitted a supplementary notarial certificate to prove that the office computer and network of the notary office were used during the notary preservation on August 30, 2011, and the notary staff of the notary office cleaned up the browser cache of the computer used for the notary before the relevant operation, the network connection was normal, and the CD used was a one-time non-erasable CD. From the content point of view, the supplementary notarization records the computer network and CD status at the time of notarization and preservation on August 30, 2011. In terms of time, the correction and notarization was made nearly one year after the notarization and preservation on August 30, 2011. Evidence preservation is the behavior of investigating, collecting and fixedly preserving the evidence that may be lost or difficult to obtain in the future. It has immediacy for the fixation of the network state and CD-ROM evidence at a certain point in time. Under the condition that the evidence preservation on August 30, 2011 did not record relevant contents in the Field Record, the subsequent correction and notarization cannot truly reflect the actual operation procedures and factual state during notarization preservation, it is not improper for the court of second instance not to accept the contents of the supplementary notarization. ⑦ It can be seen that it cannot be taken for granted that a simple correction of the notarial certificate can be recognized by the court. Since notarization is a record of the situation on the spot at that time, it cannot be supplemented by recollection, even if the notary office is willing to guarantee with its own credibility. However, if the whole process of notarization is recorded and recorded, and the cleaning inspection steps are completely recorded, it is not impossible to supplement the certificate if the notarization words are indeed omitted.

Through the above cases and data retrieval, it can be found that the cleanliness of the notarization environment is not necessarily a small problem that can be ignored. It is actually a major problem that affects whether the notarization content should be accepted and whether the infringement facts exist. Of course, the author believes that according to the rules of evidence, if there are other evidence to confirm each other and form a complete chain of evidence, the judge will also exercise his discretion to determine the facts of the evidence.

Comments:

① Ling Song and Ling Zongliang, Realistic Dilemma and Improvement Suggestions of Network Evidence Preservation Notarization, Journal of Chongqing University of Posts and Telecommunications, No. 5, 2012; Zhejiang Higher People's Court, Research on the Review and Adoption of Notarization Evidence in Intellectual Property Civil Litigation, see http://www.zjcourt.cn/art/2016/2/4/art_87_9247.html

② Xinchuan Online (Beijing) Information Technology Co., Ltd. and China Network Communications Corporation Zigong Branch of the information network dissemination right dispute retrial civil ruling, see http://openlaw.cn/judgement/f755f880f87549209cda9fee78a7e765?keyword=(2008) Minshen Zi No. 926

③ For the opinions of Zhejiang Higher People's Court on the trial of online copyright infringement disputes, see http://zzq.lawtime.cn/sfjs/20111226104763.html

④ Guiding Opinions of the Higher People's Court of Shandong Province on the Trial of Online Copyright Infringement Disputes (for Trial Implementation), see

https://www.pkulaw.com/lar/a96fc54ba1fb9dd04badeee4ed3aa1c8bdfb.html?keyword=山东省高级人民法院关于审理网络著作权侵权纠纷案件的指导意见 (Trial)

⑤ Guangdong Zhongkai Cultural Development Co., Ltd. and China Telecom Co., Ltd. for the retrial civil ruling on the dispute over infringement of the right of information network dissemination, see http://openlaw.cn/judgement/13b632ed02224c8f9babd7fdfab8429f?keyword=(2008) Minshen Zi No. 926; Beijing Forbidden City Film Co., Ltd. and China Telecom Co., Ltd. For the retrial review of the dispute over the infringement of the right of information network dissemination, see http://www.court.gov.cn/wenshu/xiangqing-7435.html

⑥ See (2015) Sui Huang Fa Zhimin Chu Zi No. 3 Civil Judgment.

All landowners Beijing Chinese online digital publishing co., ltd. and China United network communication co., ltd. bayannaoer branch information network communication right dispute retrial civil ruling, see http://openlaw.cn/judgement/ad4e295fce4a4ee88a05702bd72c0320?keyword=(2008) min Shen zi no 926