Other means of proof
Interpretation Art. 55 CCP leads to the conclusion that the list of means of proof is exhaustive (for comparison, in the AIC, the list of evidence is open), and no other means can be lawful in civil proceedings. This provision is traditionally for the civil process. The basis of this thesis is the following:
- the widest possible understanding of witness testimony, written and material evidence. In fact, any statements by legally disinterested citizens can be considered testimony, as well as various texts and subjects - written and material evidence;
- the specificity of the civil procedural form. It is, in particular, that it is impossible to verify the truth of the information received before the start of the proceedings.
However, modern legal science and practice insistently demand a change in the prevailing stereotype. The rigid restriction of the composition of the means of proof applies only to those of them that contain the original rather than derived evidence. The latter can be presented in the form of photographs, films, etc. The law also allows for the examination of evidence of their photographing, video recording and other similar actions, thereby recognizing their evidentiary value (Article 74, 184 GPC).
Article 55 of the CCP does not recognize the explanation of judicial representatives as an independent means of proof, although in practice they are widely used. However, given the provisions of Art. 48 CCP the right of citizens to conduct their cases in person or through representatives, it can be stated that the representative also gives explanations that contain certain information about the facts to be established in the case. In the case of participation in the case as a party or other person participating in the case, the organization, the right to give explanations on its behalf is vested in the representative. Such explanations of the representative should be the means of proof on the following grounds:
- the representative has the right to perform all procedural actions on behalf of the person being represented (Article 54 of the Civil Procedural Code), including giving explanations, and there is no special delegation of such right to the CCP;
- after giving a conclusion on the case by the prosecutor, a representative of the state body or a representative of the local government, the court "finds out from their other persons participating in the case their representatives, do not want whether they come up with additional explanations (item 189 ГПК);
- the minutes of the court session include, among other things, "applications, petitions and explanations of the persons participating in the case, their representatives (item 8, part 2, article 229 of the Civil Procedural Code).
The literature has long raised the issue of recognizing a specialist as a subject of judicial evidence (LN Rakitin). Its involvement is connected with the need to use special knowledge in the administration of justice and in some cases is directly provided by law (articles 10, 16, 18, 19, etc. GPC). Moreover, Art. 157 ГПК says that the court in the consideration of the case must directly investigate the evidence in the case (to hear explanations of the parties and third parties, testimony of witnesses, expert opinions, consultations and explanations of specialists), which contradicts Art. 55 ГПК which does not specify consultation and explanations of experts in the exhaustive list of means of proving. From this, in practice, a controversial situation emerges when some courts of consultation and explanations of experts are acknowledged as evidence, while others do not (see the definition of the Moscow City Court of March 4, 2013 No. 4g/2-452/13, 4d/2-453/13, 4d/2-465/13). In this regard, I. V. Reshetnikova correctly emphasizes that the task of a specialist in a court session is to assist the court and persons involved in the case in the study of evidence. If, from the advice of a specialist, that there are circumstances requiring further investigation or evaluation, the court may invite the parties to provide additional evidence or solicit an expert examination.
From the point of view of the evidence of the law, the problem of concluding a prosecutor, which is not necessary for a court, is given in the manner of art. 45 ГПК and by virtue of Art. 189 The CCP is announced after examining all the evidence, for which reason in its judgments, the justice authorities point literally to the following: having examined the evidence, after hearing the opinion of the prosecutor (or satisfy), the court comes to the conclusion that ... (see the decision of the Supreme Court of the USA from 10/01/2013 № АКПИ12-1607).
Finally, the material law provided for such means of proof as electronic means of payment, analogues of handwritten signature, codes, passwords and other means, which confirm that the disposal of funds is given by an authorized person. The Civil Code regulates that certain rights can be certified by non-documentary securities by means of electronic computers (Article 149, 1025). In order to further implement these legal provisions, the legislator adopted Federal Law No. 63-Φ3 of April 6, 2011 on Electronic Signature, but the legal (evidentiary) nature of these funds in the doctrine is not yet definitively defined. In addition, the US Government has additionally adopted a number of by-laws in the relevant field: Resolution No. 634 of 25.06.2012, "On the types of electronic signatures that are permitted when applying for state and municipal services," Decree of 25.01.2013 No. 33 " On the use of a simple electronic signature in the provision of public and municipal services and others
Consequently, from the standpoint of judicial practice, there are numerous difficulties. For example, the courts do not know how to qualify documents that have only an electronic form: whether to refer them to written evidence or to see in them a fundamentally new means of proof, not named in Part 1, Art. 55 CIC. So, in Internet disputes courts of general jurisdiction repeatedly presented printouts of materials posted on various information resources. In the current hypertext link system, it is not possible to ensure the authenticity of the printed written evidence. Therefore, courts recognize an unauthenticated listing of pages from Internet sites as inadequate evidence or resort to protocols for examining written evidence that was produced by a notary, after which, as a rule, one party's objection follows that the notary carried out two actions - obtaining and examining evidence, although The basics of legislation on notaries allow only examination of written documentation (see the definition of the Sverdlovsk Regional Court of 08.02.2013 № 33-1269/2013).
In order to avoid such objections, in Resolution of the Plenum of the Supreme Court of the United States of 15.06.2010 No. 16 "On the Practice of the Application of the Law of the United States by the Courts
Federation "On the media" further clarifies that the laws do not provide any restrictions in the way of proving the fact of dissemination of information through telecommunications networks (including through sites on the Internet). Therefore, in resolving the question of whether such a fact took place, the court, by virtue of Art. 55 and 60 CCP have the right to accept any means of proof provided by the civil procedural legislation. The Civil Procedure Code and Part 2 of Art. 102 The fundamentals of the legislation on the notary do not allow the possibility of providing the notary with evidence on cases in the proceedings of the court. However, by virtue of Part 1 of Art. 102 Fundamentals prior to the initiation of a civil case in court by a notary, evidence necessary for the case (including by certifying the content of the site on the Internet at a certain point in time) can be provided if there is reason to believe that the presentation of evidence will subsequently become impossible or difficult.
In connection with the above, in order to improve the procedural legislation and jurisprudence, taking into account foreign experience, it is necessary to make appropriate changes and additions to the CCP, explaining the legal qualification of the proof, which does not have a material basis and expressed in virtual form, the more so that the concepts "electronic document ", enshrined in Federal Law No. 149-FZ of July 27, 2006," On information, information technology and information protection ", is clearly not enough, because its decoding as a dock document containing information in electronic form; in a form suitable for human perception using electronic computers, as well as for transmission through information-telecommunication networks or processing in information systems, little is provided for evidence-based law (AV Neznamov).
The latter circumstance generates in the theory of the civilizational process numerous attempts to give the concept of an electronic document. In particular, SP Vorozhbit writes: "An electronic document is information recorded on an electronic medium that has the necessary requisites to identify it, and supporting circumstances that have legal significance. An electronic document is a written means of proof to the same extent as a paper document, if the thoughts contained in it and perceived by reading the written signs have evidentiary value. In the case where an electronic document is a written means of proof, information recorded on an electronic medium, after its transformation by means of technical means, must be presented in the form of written signs forming words and phrases bearing certain information necessary for establishing the circumstances by the court business. The necessity of using technical means for the perception of a document does not affect its essence as a written means of proving. "If we talk about foreign experience, then, according to IG Medvedev, in France, under certain conditions, the principle of equality of the evidentiary strength of electronic and paper documents is realized, but at the same time the French legislator refrains from fully equating electronic documents and authentic acts, set out on a paper basis. The Civil Procedural Code of Germany of January 30, 1877 (German GPU) uses a dualistic approach to "ordinary" and authentic documents. For example, in § 130a it is emphasized that information received from parties, third parties, witnesses can be presented both in written (paper) and electronic form only if the court is able to process such a document. In this case, the responsible person must certify the document with a qualified electronic signature, otherwise the court is obliged to inform the interested person that the electronic document is not available for processing, as it does not comply with the current standard technical rules. It is also interesting that § 371a, devoted to the evidentiary power of private electronic documents, is located in Sec. 6 Physical evidence & quot ;. For the description of authentic documents in the Code, the following is included in § 416a under the title "Evidence for the printout of an official electronic document", stating: "A certificate of an official electronic document issued ... certified in a prescribed form by a public authority within its competence or endowed with public confidence by a person within its sphere of activity, as well as a printout of a judicial electronic document containing a record of the competent court ... is equivalent to a witness ovannoy copy of an official document .
Recently, the domestic legislator has gradually introduced into the various regulatory legal acts the principle of equality of the evidentiary strength of electronic and paper documents. In any case, the courts in their activities can now focus on art. 6 of the Federal Law "On Electronic Signature", which provides the conditions for the recognition of electronic documents signed by an electronic signature equivalent to documents on paper, signed with a handwritten signature:
- information in electronic form, signed by a simple electronic signature (or an unqualified electronic signature), is recognized as an electronic document equivalent to a document in hard copy signed by a handwritten signature, in cases established by federal laws, regulatory acts adopted in accordance therewith or agreement between the participants of electronic interaction;
- information in electronic form signed by a qualified electronic signature is recognized as an electronic document equivalent to a document in hard copy signed by a handwritten signature, unless the federal laws or regulatory legal acts adopted in accordance with them require that a document on paper.Therefore, courts, guided by the provisions of the legislation on electronic digital signatures, often in their decisions indicate that, within the meaning of Federal Law No. 44-FZ dated 05.04.2013, "On the contract system in the procurement of goods, works, services to ensure state and municipal needs when conducting an auction in electronic form, there is a unique form of the contractor providing the contract - electronic, the contractor does not need to sign the contract by himself.
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