Study On The Secretly Recorded Audio-visual Materials In The Civil Procedure

Since the year of 1982, audio-visual materials have emerged in civil proceduresas an independent means of evidence. However, due to the laggard development ofscientific techniques and the low-level living standards at that time, the equipment toproduce audio-visual materials was very expensive and could not be afforded byordinary public. This led to the phenomenon that audio-visual materials, in fact,rarely appeared in court. After 1990, because of the improvement of people's life,audio-visual materials become popular in ordinary public and began to be applied incivil litigations.In recent years, with the increasing concern about the notion of the rule-of-lawand protection of privacy, secret recordings, as one form of audio-visual materials,have been paid more and more attention, especially as to its validity. However, inChinese legal system, regulations on secret recordings in legislations and judicialinterpretations are still not well-perfected, too general and lack of practicability. Thisresults in doubts and divergence in understanding and applying related regulations,among both scholars and legal professions. Courts in different districts or on differentlevels have not reached a common understanding on this issue. In addition, theresearch on the theory of audio-visual materials has not been extensively conducted,and therefore there is no mature theory that can guide the judicial practice. Thedeficiency in legislation and lack of theoretical research has in practice held back theproper functioning of the secretly recorded audio-visual materials in civil procedures.Therefore, in order to rebuild the standards to test the validity of secretly recordedaudio-visual materials, it is necessary to analyze the problem in practice and intheory.For such reasons, this paper begins with two cases involving secretly recordedaudio-visual materials in judicial practice. Based on the research of secretly recordedaudio-visual materials in the 5 years from 2000 to 2004, conducted by the XinchenDistrict Court in Nanning, Guangxi Province, the paper analyzes the main problemsof secretly recorded audio-visual material in judicial practice, focusing on its validity.Among the rules on secretly recorded audio-visual materials in China's civilprocedural legislations, the paper analyzes the Reply of the Supreme Court on theissue whether secret recorded audio-visual materials without the other party's consentcan be admitted as evidence in 1995 and Section 68 of the Several Provisions onEvidence in Civil Procedures promulgated in 2002, expatiates the relationshipbetween the two, and the problems of applying them in judicial practice. At the end,the author, by balancing different values related to secretly recorded audio-visualmaterials and making interests analysis, gives some suggestions on rebuilding thestandards of the validity of secretly recorded audio-visual materials.