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婚外情诉讼离婚取证要注意什么问题

作者:admin  日期:2019-02-23 15:31  人气:
一、婚外情诉讼离婚取证要注意什么问题
 
1. What should we pay attention to in divorce evidence collection in extramarital affairs litigation
 
 
 
1、广泛收集间接证据形成证据链
 
1. Extensive collection of indirect evidence to form evidence chain
 
 
 
婚外情案件中,取证是一个让很多当事人为难的问题。一般情况下,要取得“捉奸在床”的证据几乎不可能。所以,就要尽可能多地搜集间接证据,如查看电话通话记录、短信内容、往来书信等,最好能拍摄取得影像资料。如果配偶与情人在外面购房或租房同居,当事人可以注意搜集房产公司买房合同或租房地物业公司有关两人租房、交物业费、水电费等有关证据。还有,如住宿宾馆的票据、视听资料、证人证言、公安机关的证明等。能形成一个严密的证据锁链,对打赢官司至关重要。
 
In extramarital affairs cases, evidence collection is a difficult problem for many parties. Generally speaking, it is almost impossible to obtain evidence of "catching adultery in bed". Therefore, it is necessary to collect as much indirect evidence as possible, such as checking telephone calls, text messages, correspondence, etc. It is best to take pictures to obtain image data. If the spouse and his lover buy or rent a house outside, the parties concerned may pay attention to collecting evidence about the real estate company's purchase contract or the rental property company's rental, property fee, water and electricity fee. In addition, such as hotel bills, audio-visual materials, witness testimony, certification of public security organs, etc. A tight chain of evidence is essential to win a lawsuit.
 
 
 
2、自家取证被法院采信可能大
 
2. It is possible for the court to accept evidence from one's own family.
 
 
 
婚外情取证过程中,当事者在自家床上拍到配偶与第三者有不正当关系的照片,被法院采信的可能性较大。在自己家里捉到配偶与第三者亲密,谈不到私闯他人住宅,构不成刑事责任。但是,当事人不能将自家“捉奸”的照片在公众中传播,也不要对第三者进行人身侮辱,否则,对侵犯第三者的名誉权是能够成立的。
 
In the process of extramarital evidence collection, the parties take pictures of their spouses having an unfair relationship with the third party in their own beds, which is more likely to be accepted by the court. Capturing a spouse in one's own home is intimate with a third party, and it is not a criminal responsibility to break into another's house. However, the parties concerned should not spread their own pictures of "arresting adultery" in the public, nor should they insult the third party personally, otherwise, the infringement of the third party's right of reputation can be established.
 
 
 
3、异地“捉奸”可求助“110”
 
3. Catching adulterers in other places can turn to "110"
 
 
 
当事人不能为了掌握配偶与第三者同居的证据,而擅自闯入他人住宅进行取证。因为这样取证的方式不合法,可能会引发私闯民宅侵权问题。遇到这类情况,当事人如能确定老公与第三者同居,最好的办法就是拨打“110”报警,由执行公务的公安人员进入住宅,然后进行询问笔录,从而证实配偶与第三者的同居事实,这样的证据法庭一般会采纳。
 
The party concerned can't break into other people's house to obtain evidence for the cohabitation of the spouse and the third party without authorization. Because the way of obtaining evidence in this way is not legal, it may lead to the infringement of private intrusion into houses. In such cases, the best way for the parties to confirm the cohabitation of their husbands with the third party is to call the "110" alarm, enter the house by the public security officers performing official duties, and then make a record of the inquiry, so as to confirm the fact that the spouse and the third party cohabit. Such evidence courts will generally adopt it.
 
 
 
4、公共场所取证可被法院采纳
 
4. Evidence collection in public places may be adopted by courts
 
 
 
当事人在公园、电影院等公共场所取证,一般不会侵犯他人隐私,被法院采纳的可能性也较大。但是,在公共场所拥抱、牵手、亲吻的多,过于亲密接触的少。这些亲昵行为的照片很难说明配偶与第三者有重婚或是长期稳定同居的行为,只能从一个侧面证实他们有不正当的异性关系,证明配偶的过错存在。
 
When the parties collect evidence in public places such as parks and cinemas, they generally do not infringe on the privacy of others, and they are likely to be adopted by the courts. However, there are more hugs, hand-holding and kisses in public places and less intimate contact. These intimacy photographs are difficult to show that the spouse has bigamy or long-term stable cohabitation with the third person. They can only prove from one side that they have an unfair heterosexual relationship and that the fault of the spouse exists.
 
 
 
5、重婚罪难认定“夫妻名义”取证难
 
5. Difficulty in recognizing the crime of bigamy and difficulty in obtaining evidence in the name of husband and wife
 
 
 
重婚要求双方是以夫妻名义同居,一定要有外在表象特征:如以夫妻名义申报户口、购买及租赁住房、举行婚礼等,只要不以夫妻名义对外,就不构成重婚。说得再具体点,如果一个丈夫与第三者领取了结婚证,这就是确凿的证据;如果他与第三者居住在一起,对外“老公老婆”地介绍身份,以夫妻名义旅游聚会,那么邻居和亲友认定的证言也能有很大效力;如果男方与第三者生育子女,医院的记录上显示男方是父亲,那么这也是一个重要的证据,但是记录如果仅根据女方的陈述,或根本没有任何与男方的联系,单独生儿育女的证据的证明力就显得“势单力薄”了。
 
Bigamy requires both parties to cohabit in the name of husband and wife, and must have external characteristics: such as declaration of household registration in the name of husband and wife, purchase and rental of housing, holding a wedding, etc., as long as they are not external in the name of husband and wife, they will not constitute bigamy. To be more specific, if a husband and a third party receive a marriage certificate, this is conclusive evidence; if he lives with the third party, introduces his identity to the outside "husband and wife" and travels in the name of husband and wife, then the testimony affirmed by neighbors and relatives and friends can also be very effective; if a man has children with a third party, the hospital records show that the man is the father. This is also an important evidence, but if the record is based only on the woman's statement, or has no connection with the man at all, the evidence of having children alone appears to be "weak".
 
 
 
有位业余“女侦探”自称花了四年的时间,走街串巷、上山下乡,最终查清了丈夫包二奶、生子入户的事实。为了拍“奸夫淫妇”以及他们的“全家福”,她背着相机昼出夜伏数月,却始终一无所获,取证屡屡碰壁。物业公司为了维护业主的隐私,守口如瓶。邻居也不想管闲事,怕惹事生非。在现实生活中,由于取证难,由当事人自诉、举证的重婚案件成功率很低。近几年北京法院系统处理的重婚案件微乎其微。
 
An amateur "female detective" claimed to have spent four years walking through the streets, going to the mountains and the countryside, and finally found out the fact that her husband had two wives and had children at home. In order to photograph "adulterers and adulterers" and their "family portraits", she carried her camera day and night for several months, but she never got anything, and the evidence repeatedly hit the wall. Property companies keep a tight lip in order to maintain the privacy of owners. Neighbours also don't want to meddle, afraid of causing trouble. In real life, due to the difficulty of obtaining evidence, the success rate of bigamy cases involving private prosecution and proof by the parties is very low. In recent years, the court system in Beijing has dealt with very few cases of bigamy.
 
 
 
6、捉奸在床难证同居关系
 
6. Cohabitation in bed
 
 
 
当夫妻因一方发生“婚外情”离婚时,出于心理平衡,另一方必然想方设法取得对方“不忠”的证据,以求在离婚时,得到心理的慰藉及财产分割权益的最大化。因此,在京、沪、穗、深等各大城市,各种名目的侦探机构、调查公司如雨后春笋般应运而生。当事人抱着“捉奸取证”的心态,不择手段、不惜成本。但是,就目前法律规定以及审判案例来看,即使有“捉奸在床”的直接证据,也不能必然得到法院对于精神损害赔偿的支持。
 
When a couple divorces because of an extramarital affair, out of psychological balance, the other party must try to obtain evidence of the other party's "infidelity" in order to obtain psychological comfort and maximize the rights and interests of property division in divorce. Therefore, in Beijing, Shanghai, Guangzhou, Shenzhen and other big cities, various types of detective agencies and investigation companies sprang up. The parties hold the mentality of "arresting adultery and collecting evidence", regardless of means and costs. However, as far as the current legal provisions and trial cases are concerned, even if there is direct evidence of "catching adultery in bed", it can not necessarily be supported by the court for compensation for mental damage.
 
 
 
二、婚外情如何取证
 
2. How to collect evidence for extramarital affairs
 
 
 
婚外情一般都具有隐秘性,要收集相关证据,一方面是取证异常困难,另一方面是如果证明尺度太大,又有可能因为取证途径不合法,或是侵犯了他人的隐私权,法院不予采取。
 
Extramarital affairs are generally hidden. To collect relevant evidence, on the one hand, it is extremely difficult to obtain evidence. On the other hand, if the scale of evidence is too large, it may be illegal to obtain evidence or violate the privacy of others, the court will not take it.
 
 
 
1、信件。包括纸质的书信和短信。配偶与第三者之间的婚外情短信,有时候配偶与自己、第三者与自己还可能通过短信联系谈到婚外情的问题,这种短信都可保留下来作为证据。也可以调取当事人通话清单,证明对方经常与某个电话号码有密集联系。配偶与第三者之间的婚外情短信,配偶与自己、第三者与自己关于婚外情话题的短信,都可保留下来作为证据。但由于短信的特点,一是保存比较困难,二是很难直接证明短信发出及接收者到底是谁,
 
1. Letters. Including paper letters and text messages. Sometimes the spouse and himself, the third party and themselves may also talk about the problem of extramarital affairs through short message contact, which can be retained as evidence. A list of calls can also be obtained to prove that the other party is often closely related to a telephone number. Messages about extramarital affairs between spouses and third parties, spouses and themselves, and messages about extramarital affairs between third parties and themselves can be retained as evidence. However, due to the characteristics of short messages, it is difficult to preserve them, and it is difficult to directly prove who sent and received them.

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