LEGISLATIVE APPROACHES TO THE ELECTRONIC DOCUMENT DEFINITION AND ITS EVIDENTIARY VALUE IN THE CIS COUNTRIES

Author Name(s): Nikolai M. Golovanov, Anna A. Kulikova, Oksana V. Shmalij, Sergey V. Tychinin, Aleksandr D. Hlebnikov
Author Email: kgipp@spbgasu.ru

Abstract

This article considers the issues related to the electronic document definition according to the legislation of the member states of the Commonwealth of Independent States. Attention is focused on differences in the approaches to the structure of the electronic document, the electronic digital signature, the copy of electronic document, the use of electronic documents and electronic materials as evidence in the civil process.

Keywords

Electronic Document, Electronic Material, Simple Electronic Signature, Enhanced Unqualified Electronic Signature, Enhanced Qualified Electronic Signature, Evidence, Copy of Electronic Document, Information System, Electronic Document Management.

Introduction

With the development of computer technology and information technologies, the electronic document has taken significant positions in the field of civil transactions. In the international legal practice, an electronic document was legally applied and legislated in the second half of the XX century. Thus, according to the US Law of the State of Utah dated 1995 “On Digital Signature” (Article 46-3-402), the documents signed by an electronic signature have the same evidentiary power [1]. Similar norms are fixed in most European countries. The European Union has the Decree of the European Parliament dated July 23, 2014 No. 910/2014 “Regulation in the Field of Electronic Identification and Trusted Services for Electronic Transactions in the Domestic Market” [2]. The experience of the said law and order is very valuable for the countries with a transitional economy, introducing the electronic document management at various levels. The CIS legislation lacks a universal approach to defining the concept of “electronic document”. There are different definitions that are
differently interpreted. Due to the historically established economic relations, the issue of the electronic document unified definition is relevant for legal science. The legal non-development of an electronic document is in obvious imbalance with the wide use of electronic documents and an electronic digital signature [16].

Conclusion

Consideration of the use of electronic documents and materials as evidence in the civil process allowed us making the following conclusions: – An electronic document is an information object on an electronic medium with details allowing it being identified; – An electronic signature is the defining criterion in the electronic evidence application; – An electronic document signed with an enhanced electronic signature can be considered a direct proof when it is used in the civil and arbitration proceedings, since it allows identifying a person who has signed the electronic document and detecting the fact of making changes to it after signing the document; – An electronic document signed with a simple electronic signature can be considered a direct proof only when it is notarized at the date of signing the document, as this will prevent any changes to the document. Otherwise, the electronic document will be considered as an indirect proof; – The electronic materials are the materials sent by email and placed on the Internet. They can be considered a direct proof only if the following three conditions are simultaneously observed: identification of a person who sent or posted them on the Internet; exclusion of the fact of changing the material content at the time it was presented as evidence in court; notarization of the information content at the time of its receipt by e-mail or at the time of acquaintance with it on the Internet; in other cases, the electronic materials can be considered only indirect evidence in court. We would also like to draw attention to the following. In the courts of the CIS countries, the only criterion for the electronic document reliability is the presence of an electronic signature. In the USA, this issue is treated differently. The electronic documents are recognized by courts as admissible evidence not only if they are confirmed by the electronic signature, but by the testimony, written declarations of the electronic document recipient and other indirect evidence [17].
With regard to the increasing use of electronic documents and materials in civil circulation, a large number of regulatory legal acts regulating a particular area of interaction with the electronic documents and materials, the legislators of the CIS countries should also give in the model law not only a legal definition of the electronic document, but the electronic material as well; determine the electronic document structure, the legal status of electronic document management; supplement the list of evidence by indicating the electronic documents and materials; regulate the procedural order for the submission and evaluation of electronic evidence in courts. All this will ensure reliable legal protection of the electronic interaction participants in case of various civil law disputes.

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