民事诉讼中网络聊天证据取证的困境与出路

社交软件在互联网、大数据时代得到了飞速发展,网络聊天证据在民事诉讼中的运用增长迅速。网络聊天证据能否合法有效地收集对最大限度地再现案件真实和实体正义的实现影响甚巨。鉴于网络聊天证据在实务中采信率较低的司法现状,有必要对聊天证据收集的指导原则加以明确,并在此基础上对收集程序和取证主体等配套制度予以完善,赋予网络服务商之法定协助取证义务,以寄望破解当前网络聊天证据原件模糊、取证主体受限、成本高昂之困境。     

不真正连带责任的诉讼构造——以《民法典》第1203条为中心

Unreal joint liability is a unique type of civil joint liability in China. To facilitate the needs of the obligees to seek relief, substantive law gives obligees for prosecution options. But in the judicial practice, the serious shortage of rules of procedure makes the practices diversified in the choice of court in litigation form, an outsider procedural safeguard limits and the presentation of the main text of the judgment. so it is necessary to start with internal and external relationship of unreal joint liability, apply similar necessary joint action to construct unreal joint liability litigation structure. In the stage of litigation, the ultimate liable person who is not listed as the defendant can enter the litigation as an auxiliary third party or witness and obtain certain procedural protection by comprehensively considering the factors of “procedural protection, litigation economy, case investigation” and so on. In the stage of liability determination, the objective scope of res judicata is expanded to block the right of the successful plaintiff to claim the same facts separately, so as to give consideration to the interests of the litigant subjects and the quality and effect of dispute resolution.