In this study of an electronic document and its place in the legal field of the digital society, the authors analyze the problems associated with the very definition of this concept, its legal definition, as well as those pecularities of the electronic document that allow us to talk about its legal force. Modern society today, of course, is experiencing the impact of technological factors and things that seemed unshakable, well-established are transforming, acquiring new forms and significance. New digital technologies have an impact on state and public institutions, on the law itself, including its conceptual apparatus. Without documenting, it is impossible to ensure stable civil circulation, regardless of the form in which the document is submitted. The digitalization of society, the transformation of economic relations, has led to the need for the use of electronic documents, electronic document management. In this regard, the definition of regulatory requirements for an electronic document, its properties, which will uniquely determine its legal significance, is as relevant as ever. Given the variety and number of documents in the modern world, it is necessary to understand that depending on the type of document, its purpose and use, the attributes (details) and procedures that give it legal force will vary. Unfortunately, at the regulatory legal level in Russia, neither the concept of “document” nor the concept of “legal force” has been forced yet. The purpose of this study is to identify gaps in the legislation, an attempt to develop proposals for stabilizing this process.
Keywords: Electronic documentelectronic evidencelegal force of a document
The problems of defining the concept of an electronic document, the properties that give it legal force, as well as the evidentiary value of an electronic document, are invariably connected with the issues of maintaining the confidentiality of the information contained in such documents. Deficiencies in the existing regulation of the protection of confidential information, including that contained in electronic documents, cause problems in ensuring civil circulation. The electronic exchange of business information between the countries that are parties to the contractual relationship inevitably leads to the need for a clear regulatory framework ensuring the preservation of confidential information (Vojkovic & Milenkovic, 2017).
Analyzing the definitions given to the concept of “document” in legal regulatory acts of the Russian Federation, it can be summarized that any tangible medium on which information is recorded in any way can be recognized as a document, provided that it can be identified and created for public use with subsequent transfer and storage. Depending on the type of document, methods for giving it legal force will vary. Even more complex is the problem of archival storage of digitized documents, the transfer of legally significant documents through social networks, while maintaining the confidentiality of the information contained in them (Bountouri, 2017).
In the scientific literature, the concept of the legal force of a document is considered mainly in relation to legal acts. This approach is understandable, because it is precisely the unified system of interconnected legal acts that acts as the guarantor of stable legal regulation. The construction of such a system should be based on a hierarchical structure, in accordance with which legal acts are distributed according to their legal force. The legal force of legal acts is determined depending on competence and authority of the body (person) who issued it. In this case, tit is all about the degree of legal force that a particular legal act possesses.
According to Umanskaya (2013), the concept of legal force is a relative category is not stable and depends on various factors that appear and disappear depending on certain circumstances, which is the reason for the lack of a method that would be a single and universal way to determine legal force legal acts in science. It is necessary to determine the legal force of a legal act considering all its features and factors that may affect the position it occupies in the system.
But, despite the difficulties in determining the legal force of a legal act, considering the instability of the legal system itself caused by the influence of both subjective factors and the need for legal practice and changes in public relations, it is even more difficult to define the legal force of a document in a broad sense. The problem of the safety of information contained in a legally significant document transmitted electronically is even more complex. Documents exist both in traditional paper form and in electronic form. The transition to the digital form of documents has been delayed and one of the problems existing in this area is ensuring the protection of information protected by law. These include, for example, medical information regarding medical confidentiality, information protected by attorney client privilege, personal data (Suslo, Trnka, & Drobnik, 2017).
The validity criteria of a document are its authenticity, compliance with the law (Akimova, 2013). The legal force of the document is associated with the reliability of the information contained therein. And here there is a need to consider the document both from the side of its evidentiary value, and from the side of its legal value, confirming the legal event, the presence of legal fact.
In addition to the fact that the document must contain information that must be identified, the main task of the document is to save information that can be used as evidence of legal obligations or business activities. Criminal offenses are increasingly being committed through digital technologies, and the issues of evidence using digital documents remain the most controversial in forensics (Sönmez & Varol, 2019).
To simplify the process of proof using electronic documents, it is proposed to approve the procedure according to which a digital document of any type is to be used as evidence in the future, thus is it must be signed by parties with an interest in the case and transferred to an online platform that provides storage and access to evidence. The need for digital forensics is also possible (Rahman & L'Abbe, 2015).
Purpose of the Study
The aim of the study is to identify problems caused by the lack of regulatory regulation of the use of electronic documents, to determine the properties that give them legal force. The analysis of domestic and world experience in the use of legally significant electronic documents reveals a number of problems existing and those that are possible in connection with new changes in legislation. So, from October 1, 2019, an electronic transaction is considered to be the equivalent of a written transaction if it is completed using electronic or other technical means. One of the conditions for recognizing the equivalence of an electronic transaction is the ability to reliably identify a person who has expressed the will in such transaction. One of the most important issues nowadays is the inability to identify the origin of the document and its source. Now the experience of countries where means to ensure the safe use of electronic documents in the civil law turnover already exits is most useful (Petrov, Karpinski, & Petrov, 2018). Systems have already been created to ensure the interaction of notaries with the state - electronic notaries. The system of the notary chamber is managed through a special Center where the registers and information systems are concentrated (Llopis Benlloch, 2018).
The methodological basis of the research are such general scientific methods of cognition as analysis, synthesis, analogy. During the study a comparative method was used and therefore various opinions were examined in comparison with the solution of the studied problems. Such approaches as functional, systemic, structural were applied. In addition, formal legal and comparative legal methods were used. Particularly important is the systematic method of research, that helped analyze civil relationships in relation of the ubiquitous transition to electronic documents.
In light of these changes in public relations one cannot but draw conclusions about the need for detailed regulatory regulation of issues of storage and transmission of data contained in electronic documents giving them legal force by electronic digital signature and the use of electronic documents as evidence (Ruballo, 2018). An important point here is the need for the development of legal regulation of relations using an interdisciplinary approach that connects issues of technology, law and management, technical and human sciences (Belej, 2020).
The use of electronic documents confirmed by an electronic digital signature causes many problems not only of a legal nature, but also technical issues (Dorofeeva, 2020). In addition, we must not forget about the limited number of our fellow citizens in material resources, which can cause a significant violation of their rights, including, for example, the right of access to justice. This is a ubiquitous e-justice system (Lupo, 2019). Such difficulties must be taken into account and citizens should be able to use documents in their traditional form.
The study allows us to draw the following conclusions. The process of digitalization of the society has started, it is impossible to stop it and the main task that lawyers and specialists in other fields of science and technology face is the development of such legal norms that would ensure stable civil law protection, protect both legally and digitally (Taran, 2020). From a legal point of view, this task cannot be accomplished without clear, normatively fixed concepts, both existing and new. Due to the fact that almost all civil relations are documented, it is necessary to determine exactly what an electronic document is, what gives it legal force and in which case such a document is evidence in both civil and criminal proceedings.
- Akimova, T. I. (2013). The problems of legal force of an official document in the context of the application of information technology. Bulletin of NSTU Named after R.E. Alekseeva. Series “Management in Social Systems. Communicative Technologies, 3, 25-34. [in Rus.].
- Belej, O. (2020). The cryptography of elliptical curves application for formation of the electronic digital signature. In Z. Hu, S. Petoukhov, I. Dychka, M. He (Eds.), Advances in Computer Science for Engineering and Education II. ICCSEEA 2019. Advances in Intelligent Systems and Computing, 938 (pp. 43-57). Cham: Springer. https://doi.org/10.1007/978-3-030-16621-2_5
- Bountouri, L. (2017). Archives in the digital age. 1st Edition. Standards, Policies and Tools. Sawston, Cambridge: Chandos Publishing.
- Dorofeeva, J. A. (2020). Digitization: The Bar’s aspect. In S.I. Ashmarina, M. Vochozka, V.V. Mantulenko (Eds.), Digital Age: Chances, Challenges and Future. ISCDTE 2019. Lecture Notes in Networks and Systems, 84 (pp. 574-580). Cham: Springer. https://doi.org/10.1007/978-3-030-27015-5_68.
- Llopis Benlloch, J. C. (2018). Notaries and digitalization of company law. ERA Forum, 19(1), 49-61. https://doi.org/10.1007 / s12027-018-0499-2
- Lupo, G. (2019). Assessing e-justice smartness: A new framework for e-justice evaluation through public values. In M. Rodriguez Bolivar (Ed.), Setting Foundations for the Creation of Public Value in Smart Cities. Public Administration and Information Technology, 35 (pp. 77-113). Cham: Springer. https://doi.org/10.1007 / 978-3-319-98953-2_4
- Petrov, A. A., Karpinski, M., & Petrov, O. S. (2018). Development of methodological basis of management of information protection in the segment of corporate information systems. Paper Presented at the International Multidisciplinary Scientific GeoConference Surveying Geology and Mining Ecology Management, SGEM, 18(2.1) 317-324. https://doi.org/10.5593 / sgem2018 / 2.1 / S07.040
- Rahman, S. S. M., & L'Abbe, C. (2015). Digital forensics and incident response recommendations for an enterprise to build resiliency against cyber crimes. In L. Miller (Ed.), Proceedings of the 30th International Conference on Computers and their Applications, CATA 2015 (pp. 437-442). Winona: International Society for Computers and Their Applications.
- Ruballo, Á. H. Z. (2018). Application for digital signature and generation of certificates using the bouncy castle API considering digital signature law in El Salvador. In M.N. Cardona (Ed.), Proceedings of the 38th Central America and Panama Convention, CONCAPAN 2018 (8596612). New Jersey: IEEE. Retrieved from: https://ieeexplore.ieee.org/document/8596612 Accessed:10.09.2019.
- Sönmez, Y. Ü., & Varol, A. (2019). Legal and technical aspects of web forensics. In A.Varol. M. Karabatak, C. Varol, S. Teke (Eds.), Proceedings of the 7th International Symposium on Digital Forensics and Security, ISDFS 2019 (8757536). New Jersey: IEEE. https://doi.org/10.1109/ISDFS.2019.8757536
- Suslo, R., Trnka, J., & Drobnik, J. (2017). Current threats to medical data security in family doctors' practices. Family Medicine and Primary Care Review, 19(3), 313-318. https://doi.org/10.5114/fmpcr.2017.69297
- Taran, K. K. (2020). Approaches determining the applicable law using internet technologies in the digital economy. In S.I. Ashmarina, M. Vochozka, V.V. Mantulenko (Eds.), Digital Age: Chances, Challenges and Future. ISCDTE 2019. Lecture Notes in Networks and Systems, 84 (pp. 622-629). Cham: Springer. https://doi.org/10.1007/978-3-030-27015-5_74
- Umanskaya, V. P. (2013). Methods for determining the legal force of legal acts. Administrative Law and Process, 5, 18-20. [in Rus.].
- Vojkovic, G., & Milenkovic, M. (2017). Legal framework issues managing confidential business information in the Republic of Croatia. In P. Biljanovic, M. Koricic, K. Skala, T.G. Grbac, M. Cicin-Sain, et al. (Eds.), Proceedings of the 40th International Convention on Information and Communication Technology, Electronics and Microelectronics (pp. 1319-1323). New Jersey: IEEE. https://doi.org/10.23919/MIPRO.2017.7973627
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09 March 2020
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Rudneva*, Y. V., Fadeev, A. V. (., & Chugurova, T. V. (2020). Legal Force Of An Electronic Document. In S. I. Ashmarina, & V. V. Mantulenko (Eds.), Global Challenges and Prospects of the Modern Economic Development, vol 79. European Proceedings of Social and Behavioural Sciences (pp. 842-846). European Publisher. https://doi.org/10.15405/epsbs.2020.03.121