Tamara Vorotyntseva - Development Director of the training company "BUSINESS PARTNER" (Moscow). Practicing business coach, author of the book “Building a personnel training system” and publications in business publications in Russia, Kazakhstan and Ukraine. The creator of the Internet mailing list: "E-mail correspondence in business" on the subscribe.ru server! The book is a practical guide for business people who actively correspond with clients and partners. It presents tools that will help make electronic communication efficient, optimal in terms of time and result, and as much as possible in line with the rules and regulations adopted in the modern business community. The author gives practical advice, illustrates his observations with real life cases, and draws reasoned conclusions. The text of the book is rich in recognizable examples of real business correspondence. The author shares his observations, techniques, "tricks" that can significantly affect the efficiency and effectiveness of a business email. If you are a business person and it is important for you to write quickly, concisely, competently, in accordance with the rules of good business tone, this book will become your reliable assistant.
Book:
When working with the fields "To" ("To"), "Copy" ("CC"), "Bcc" ("BC"), remember that this is an important part of the email that affects the further actions of the participants in the correspondence.
"To whom" ("That"). This field contains the address of the recipient to whom the letter is directly addressed and the information contained in it. From the main recipient, the author of the letter is waiting for a response. If two recipients are placed in this field, then the author of the letter is waiting for a response from each or one of them (keep this in mind if your name is on the list of recipients). At the same time (if you are the sender), keep in mind that it is not very advisable to include more than one recipient in the “To” (“To”) field. A letter sent to several recipients may not receive a single answer, since everyone will think that the other will answer.
If the letter is addressed to you, but contains other recipients in the copy, be sure to use the "Reply ALL" button when answering! This will save the circle of addressees indicated by the initiator of the correspondence.
"Copy" ("Ss"). IN put in this field the addresses of recipients who, in your opinion, should be aware of the correspondence on this issue. These recipients receive information only "for information". The recipient in the copy usually does not have to respond to the letter, but may do so if necessary.
NOTE. IT IS IMPORTANT!
If your name is in the "Copy" ("CC") field, then when entering into correspondence, remember that there are situations when it is extremely important to be polite. Use the phrases: "Let me join the discussion", or "Let me join your dialogue", or "Let me express my opinion."
"Bcc" ("Bcc"). This field in some companies is prohibited for use, as it is a tool that is contrary to the ethical standards of communication. The purpose of this field is to invite the addressee to become a "secret witness".
If it is customary in your business practice to use this field at work, consider the following. The recipient in the "blind copy" remains invisible to the main recipient and to the recipients in the copy. Sometimes it is useful for the sender and the "secret recipient" to have a preliminary agreement (or subsequent awareness) about the reason and purpose of this method of informing.
NOTE. IT IS IMPORTANT!
A "hidden" recipient should absolutely not enter into correspondence from this field.
Today, courts often accept electronic correspondence as written evidence. However, for this it must have legal force. Meanwhile, clear and unified rules and methods for determining the legitimacy of virtual correspondence have not yet been developed, which leads to a large number of problems.
Let's look at a few ways to give legal force to emails.
Long gone are the days when letters on paper were the only means of communication. The development of economic relations between economic entities is already unthinkable without the use of information technology. This is especially true when counterparties are located in different cities or even countries.
Communication via electronic communication helps to reduce material costs, and also allows you to quickly develop a common position on specific issues.
However, such progress should not be viewed only on the positive side. Various disputes often arise between the subjects of economic relations, for their resolution they turn to the courts. The court makes a decision based on an assessment of the evidence provided by the parties.
At the same time, the relevance, admissibility, reliability of each evidence separately, as well as the sufficiency and interconnection of evidence in their totality are analyzed. This rule is fixed both in the APC of the Russian Federation (clause 2 of article 71) and in the Code of Civil Procedure of the Russian Federation (clause 3 of article 67). In the process of determining the admissibility and reliability of the evidence provided, the court often asks questions, the solution of which significantly affects the outcome of the case.
The use of electronic document management in relations between economic entities is regulated by the norms of the Civil Code of the Russian Federation. In particular, in paragraph 2 of Art. 434 states: a written contract can be concluded by exchanging documents via electronic communication, which makes it possible to reliably establish that the document comes from a party to the contract.
In accordance with paragraph 1 of Art. 71 Code of Civil Procedure of the Russian Federation and paragraph 1 of Art. 75 of the Arbitration Procedure Code of the Russian Federation, written evidence is business correspondence containing information about the circumstances relevant to the consideration and resolution of the case, made in the form of a digital record and received via electronic communication.
For the use of electronic documents in legal proceedings, two conditions must be met. First, as already indicated, they must have legal force. Secondly, the document must be readable, that is, contain information that is generally understandable and accessible to perception.
This requirement follows from the general rules of legal proceedings, which presuppose the immediacy of judges' perception of information from sources of evidence.
Often, the court refuses to attach as evidence to the case materials electronic correspondence that does not meet the above conditions, and subsequently makes a decision that does not satisfy the legitimate requirements of the interested party.
Consider the main ways of legitimizing electronic correspondence before and after the start of proceedings.
Work with a notary
If the case has not started yet, then in order to give legal force to electronic correspondence, you need to involve a notary. In paragraph 1 of Art. 102 of the Fundamentals of Notarial Legislation (Fundamentals) states that, at the request of interested parties, a notary provides evidence required in court or an administrative body if there is reason to believe that the presentation of evidence will subsequently become impossible or difficult. And in paragraph 1 of Art. 103 of the Fundamentals stipulates that in order to secure evidence, the notary examines written and material evidence.
According to paragraph 2 of Art. 102 of the Fundamentals, a notary does not provide evidence in a case that, at the time the interested persons apply to him, is in the proceedings of a court or an administrative body. Otherwise, the courts recognize the notarized electronic correspondence as inadmissible evidence (Resolution of the Ninth AAC dated March 11, 2010 No. 09AP-656 / 2010-GK).
It is worth recalling that based on Part 4 of Art. 103 Fundamentals, providing evidence without notifying one of the parties and interested parties is carried out only in cases of urgency.
In order to examine the evidence, a protocol is drawn up, which, in addition to a detailed description of the actions of the notary, must also contain information about the date and place of the inspection, the notary conducting the inspection, about the interested persons participating in it, and also list the circumstances discovered during the inspection. The e-mails themselves are printed out and filed with the protocol, which is signed by the persons participating in the inspection, by the notary and sealed with his seal. By virtue of the Determination of the Supreme Arbitration Court of the Russian Federation dated April 23, 2010 No. VAC-4481/10, the notarized protocol of the inspection of the electronic mailbox is recognized as proper evidence.
Currently, not all notaries provide e-mail certification services, and their cost is quite high. For example: one of the notaries of the city of Moscow charges 2 thousand rubles for one page of the descriptive part of the protocol.
A person interested in securing evidence shall apply to a notary with a relevant application. It should indicate:
- evidence to be secured;
- the circumstances that are supported by this evidence;
- the grounds on which the provision of evidence is required;
- the absence at the time of applying to the notary of the case in the proceedings of the court of general jurisdiction, arbitration court or administrative body.
Notaries examine the contents of the electronic box either remotely, that is, they use remote access to the mail server (it can be the server of the provider providing the electronic communication service under the contract; the mail server of the domain name registrar or the free Internet mail server), or directly from the computer of the person concerned , which has an e-mail program installed (Microsoft Outlook, Netscape Messenger, etc.).
For remote inspection, in addition to the application, the notary may need permission from the domain name registrar or Internet provider. It all depends on who exactly provides support for the work of mailboxes or an electronic mail server under the contract.
Provider confirmation
Resolutions of the Ninth AAC dated 04/06/2009 No. 09AP-3703 / 2009-AK, dated 04.27.2009 No. 09AP-5209/2009, FAS MO dated 05.13.2010 No. KG-A41 / 4138-10 stipulate that the courts also recognize the admissibility of electronic correspondence , if certified by the ISP or domain name registrar who are responsible for managing the mail server.
A domain name provider or registrar will certify electronic correspondence at the request of an interested party only if it manages the mail server and such a right is specified in the service agreement.
However, the volume of electronic correspondence can be quite large, which in turn can complicate the process of providing paper documents. In this regard, the court sometimes allows the provision of electronic correspondence on electronic media. Thus, the Arbitration Court of the Moscow Region, in issuing its Decision dated August 1, 2008 in case No. A41-2326/08, referred to the admissibility of electronic correspondence submitted to the court on four CDs.
But when considering the case in the appellate instance, the Tenth AAC, by its Resolution dated 09.10.2008 in case No. A41-2326 / 08, recognized the link to electronic correspondence as unfounded and canceled the decision of the court of first instance, indicating that the interested party did not submit any documents provided for by the concluded parties contract.
Thus, e-mails relating to the subject of the dispute must be submitted to the court in writing, and all other documents can be submitted electronically.
To prove the facts stated in virtual correspondence, confirmation of the content of letters by referring to them in subsequent paper correspondence will help. The use of other written evidence is reflected in the Resolution of the Ninth AAC of December 20, 2010 No. 09AP-27221/2010-GK. Meanwhile, the court, considering the case and evaluating the evidence provided by the parties, has the right not to consider paper correspondence with links to electronic correspondence acceptable.
He only takes it into account and makes a decision based on a comprehensive analysis of all the evidence presented.
Get help from an expert
If case has already started, then in order to give legal effect to electronic correspondence, it is necessary to use the right to involve an expert. In paragraph 1 of Art. 82 of the Arbitration Procedure Code of the Russian Federation, it is regulated that in order to clarify issues arising during the consideration of a case that require special knowledge, the arbitration court appoints an expert examination at the request of a person participating in the case, or with the consent of the persons participating in it.
If the appointment of an expert examination is prescribed by law or an agreement, or is required to verify a statement about the falsification of the submitted evidence, or if an additional or repeated expert examination is necessary, the arbitration court may appoint an expert examination on its own initiative. The appointment of an examination to verify the evidence presented is also provided for in Art. 79 Code of Civil Procedure of the Russian Federation.
In the application for the appointment of a forensic examination, it is necessary to indicate the organization and specific experts who will carry it out, as well as the range of issues for which the interested party decided to apply to the court for the appointment of an examination. In addition, information should be provided on the cost, timing of such an examination and deposited with the court in full for its payment. The involved expert must meet the requirements established for him in Art. 13 of the Federal Law "On State Forensic Activities in the Russian Federation".
Attachment to the case file as evidence of an expert's opinion on the authenticity of electronic correspondence is confirmed by judicial practice (Decision of the Arbitration Court of the city of Moscow dated August 21, 2009 in case No. A40-13210 / 09-110-153; Resolution of the FAS MO dated January 20, 2010 No. KG-A40 /14271-09).
On the basis of an agreement
In paragraph 3 of Art. 75 of the Arbitration Procedure Code of the Russian Federation, it is noted that documents received via electronic communication are recognized as written evidence, if this is prescribed in the agreement between the parties. Accordingly, it is necessary to indicate that the parties recognize the legal force of correspondence and documents received by facsimile, the Internet and other electronic means of communication equal to the originals. At the same time, the contract must specify the e-mail address from which the electronic correspondence will go, and information about the authorized person authorized to conduct it.
The contract must state that the designated e-mail address is used by the parties not only for working correspondence, but also for transferring the results of work, which is confirmed by the position of the FAS MO in Resolution No. KG-A40 / 12090-08 dated 12.01.2009. The Decree of the Ninth AAC dated December 24, 2010 No. 09AP-31261 / 2010-GK emphasizes that the contract should stipulate the possibility of using e-mail to approve the terms of reference and make claims about the quality of the services provided and the work performed.
In addition, the parties may provide in the contract that notifications and messages sent by e-mail are recognized by them, but must be additionally confirmed within a certain period by courier or registered mail (Resolution of the Thirteenth AAC dated April 25, 2008 No. A56-42419 / 2007).
Summing up, we can say that at the moment there is a practice of using electronic correspondence by the courts as written evidence. However, taking into account the requirements of procedural law regarding the admissibility and reliability of evidence, virtual correspondence is taken into account by the court only if it has legal force.
In this regard, a large number of problems arise, since a unified methodology for determining the legitimacy of electronic correspondence has not yet been formed. The right of an interested party to apply to a notary in order to provide evidence is fixed, but there is no normative act of the Ministry of Justice of the Russian Federation regulating the procedure for the provision of such services by notaries. As a result, there is no single approach to determining their value and the formation of a clear mechanism for the implementation of this right.
There are several ways to legally validate emails for evidence in court: securing emails with a notary public, notarizing with an ISP, by linking to emails in further paper communications, and forensic proof of their authenticity.
A competent approach to the timely provision of electronic correspondence as written evidence will allow business entities to fully restore their violated rights in resolving disputes.
Fax communication provides the transfer of information from paper (texts, tables, graphs, drawings, drawings, photographs, etc.) and the reception of this information in the form of a copy (facsimile), often called fax or telefax in practice.
The requirements for compiling and formatting messages transmitted by facsimile are determined by the type of original document being sent (letter, contract, minutes, etc.).
In accordance with the Civil Code of the Russian Federation (Article 160), the use of a facsimile reproduction of a signature by mechanical or other copying, an electronic digital signature or an analogue of a handwritten signature in transactions is allowed in cases and in the manner prescribed by law, other legal acts or agreements of the parties.
The document (fax) received at the output of facsimile communication, subject to the established conditions and procedures, may have legal force.
Documents sent via facsimile channels must be printed in a clear, contrasting font or written with a ballpoint pen or ink, contrasting black, dark blue ink.
telephone messages
The text of the telephone message is transmitted orally through telephone channels and recorded (printed) by the recipient.
The legal force of the received telephone message is determined by the following details:
Outgoing registration number of the sent telephone message;
Position, surname, name, patronymic and signature of the person who sent the telephone message;
Position, surname, name, patronymic and signature of the person who received the telephone message in the registration log;
Incoming registration number of the received telephone message.
Telephone messages are recommended to be used for prompt resolution of issues in cases where messages transmitted by telephone require documentation. Simple texts (invitations to meetings, meetings, etc.) are transmitted by telephone messages.
The sent telephone message is drawn up in one copy and signed by the head or other official.
If a telephone message is sent to several recipients, then a list of them with telephone numbers must be attached to it.
The text should not use hard-to-pronounce words and complex phrases.
The date of the telephone message is the date of its transmission.
The telephone message received by the organization is recorded by the recipient on a standard form or on a blank sheet in compliance with the standard design rules.
8.3. Documents transmitted via electronic channels
mail (EP)
ES allows data exchange between computer facilities, analysis, processing and storage of received and sent messages.
ES is used both for sending messages within one organization and for sending messages between different organizations that have the appropriate hardware and software.
The e-mail addressee receives an image of the document (electronic message) on the computer screen or in the form of a hard copy obtained using a printing device (printer).
In accordance with the legislation, the legal force of documents stored, processed and transmitted using automated information and telecommunication systems can be confirmed by an electronic digital signature, the procedure for using which is determined by the Federal Law "On Electronic Digital Signature" dated January 10, 2002 N 1-FZ. The legal force of an electronic digital signature is recognized if the specified systems have software and hardware tools that ensure the identification of the signature, and compliance with the established mode of their use.
The presence of paper analogues of documents sent by e-mail is determined in the regulations, instructions for the DOW in the organization. A paper analogue creates convenience in work for employees, it is necessary in case of conflict situations, in case of non-receipt of the document by the addressee, etc.
By connecting to the ES, the user gets the opportunity to correspond with other subscribers.
EP provides subscribers with the following options:
Interact through electronic mailboxes with departments of the organization, among themselves and with other subscribers of the EP network;
Have quick access to information stored in the databases of various organizations;
Exchange messages with subscribers of other networks;
Receive messages from teleconferences on topics of interest and send your own messages to the teleconference;
Have access to public archives that exist on certain servers both on the Internet and other related networks throughout the world.
Each subscriber in e-mail is allocated an individual "mailbox" (computer memory area), which is assigned a user code. Electronic messages are exchanged through these mailboxes.
All correspondence, depending on its content and purpose, the e-mail system stores in various "folders", which are divided into personal and general. This makes it possible to separate received letters and sent ones; separately store unfinished letters and copies of deleted ones; protect private information, since the personal folders of one user should not be available to other users of the ES system.
The ES system provides for the following operations with letters: search, copying and transferring from one folder to another, selection according to a given criterion.
The built-in address book and text editor make it easy to create and send emails. Once created and entered into the database of document forms, a letter can be used repeatedly.
An electronic message consists of an address or several addresses of recipients, a header containing service information, and text.
The address in the ES system consists of the name of the electronic mailbox, which usually matches the user's registration name, and the domain, which describes the place, computer or local system where this electronic mailbox is located. The name and domain are separated by the "@" sign, for example:
[email protected]- name@domain.
A domain consists of several subdomains separated by dots.
On the Internet, top-level domains are allowed that indicate the code of the organization:
COM - commercial organizations;
EDU - educational and scientific institutions;
GOV - government agencies;
MIL - military organizations;
NET - Internet network nodes;
ORG - other organizations.
The service header of an e-mail contains several fields that are set by the author of the message or automatically added by the system.
If the text of the e-mail is too large (more than 100 kilobytes), it is better to compress it using the commands "compress" in UNIX systems, "pkarc" or "pkzip" in MS DOS, or send the message in parts.
If you need to send a file containing non-text information, object code, a database file, or an image file, it should be transcoded into text form.
Sending an electronic message containing encrypted information is allowed if the recipient of the information has the ability to decode it.
The requirements for the execution of documents sent by the ES are similar to the requirements set out in sections 3.4. The document must indicate the author of the document, its date, registration number, type name (except for a letter), position and surname of the person who signed the document, the electronic address of the organization and the electronic digital signature (EDS) of the author.
Documents received by ES are registered in compliance with the same rules and registration forms as paper documents. The "@" sign is added to the number of the document received or sent by ES: N 141@.
The use of an electronic digital signature (EDS) requires the creation of a reliable system of protection against unauthorized access to documents by building a system for delimiting access rights to information at various levels of the organization's hierarchy.
EDS is issued to a specific person (as an analogue of a handwritten signature) and its use to certify the signature of another person is not allowed.
The document sent by ES is signed by the DS. In the absence of the head, the document is signed by his deputy in accordance with the distribution of duties and sent via ES without an DS.
EDS authentication is possible for the most important documents. If the EDS of the outgoing document is not confirmed, it is not sent and returned to the contractor. In case of non-confirmation of the EDS of the received document, the necessary clarifications are made.
A document received via ES can be submitted for execution in paper form with a stamp "duplicate" or other designation of an analogue of an electronic document. The correctness of the EDS is confirmed by the corresponding mark: "EDS is correct. Operator's signature" or "ETS is confirmed. Operator's signature". The mark should be in the form of a stamp.
The organization can create its own internal corporate information system, which employees can use independently and at their own discretion - without confirmation of the EDS. Such a system of electronic communication is introduced by the head of the organization.
In this case, it is possible to use the transmitted documents (messages) without putting them on paper.
Answered the lawyer - Bar Association:
In accordance with Part 1 of Art. 71 Code of Civil Procedure of the Russian Federation, written evidence is containing information about the circumstances relevant to the consideration and resolution of the case, acts, contracts, certificates, business correspondence, other documents and materials made in the form of a digital, graphic record, including those received by facsimile, electronic or other connection or in another way allowing to establish the authenticity of the document.
Paragraph 1 of part 2 of the same article establishes that written evidence is presented in the original or in the form of a duly certified copy.
If the MMS contains audio or video recordings, then in accordance with Art. 77 Code of Civil Procedure of the Russian Federation, a person submitting audio, video recordings on electronic or other media is obliged to indicate when, by whom and under what conditions these recordings were made.
Taking into account the modern development of communication systems, such messages are stored in the phone's memory and can be copied to physical media. At the same time, information about the sender is contained in the information about the message displayed automatically, as well as in the database of subscribers, extracts from which are provided in the manner prescribed by law at the request of the court or competent authorities. If the sender is automatically classified or other methods are used to make it difficult to identify the sender, the data can be obtained only upon specified requests.
Thus, SMS and MMS as of a specific time for submission to the court must be recorded on a tangible medium and printed on paper. Video clips are recorded and presented on a tangible medium.
The authenticity of SMS and MMS as of a specific time is confirmed by documenting the content of messages and information about them.
In accordance with paragraph 11 of Art. 2 of the Federal Law of July 27, 2006 N 149-FZ "On Information, Information Technologies and Information Protection", documented information is considered to be recorded on a material carrier by documenting information with details that allow it to be identified or, in cases established by the legislation of the Russian Federation, its material carrier.
There are no special requirements regulating the procedure for such documentation in the legislation. Therefore, there are general requirements governing the provision of evidence, in particular Art. 71 Code of Civil Procedure of the Russian Federation, Art. Art. 102, 103 Fundamentals of the legislation of the Russian Federation on notaries.
Valid documentation options are the following:
- fixing, printing, drawing up an act (protocol) of familiarization with the content of SMS and MMS in the presence of witnesses, indicating their surnames, names, patronymics, addresses;
- prior to the initiation of legal proceedings - fixing, printing, drawing up a protocol for examining the content of SMS and MMS with certification by a notary;
- in the process of considering the case - in the manner prescribed by Art. 71 Code of Civil Procedure of the Russian Federation. At the same time, materials can be claimed not only from violators of rights or from interested parties, but also from telecom operators;
- examination, fixation, printing, attachment to the expert opinion of the content of SMS and MMS.
This conclusion is confirmed by judicial practice (Determination of the Judicial Collegium for Criminal Cases of the Armed Forces of the Russian Federation of November 12, 2007 N 12-O07-22).
14.09.2012
Use in court as evidence of facsimile copies and documents transmitted via e-mail (in scanned form)
Over the past few decades, the achievements of the scientific and technical sphere have rapidly changed the life of modern man. New means of communication, means of recording, storing, reproducing information have appeared. These achievements could not remain unintegrated into the socio-economic sphere and, accordingly, could not affect the legal superstructure. Otherwise, the stability of civil circulation would be violated by the lack of legal regulation of newly emerged social relations.
In accordance with paragraph 2 of Article 160 of the Civil Code of the Russian Federation (hereinafter referred to as the "CC RF"), “The use of facsimile reproduction of a signature by means of mechanical or other copying, electronic signature or other analogue of a handwritten signature in transactions is allowed in cases and in the manner prescribed by law, other legal acts or by agreement of the parties.”
In accordance with paragraph 2 of Article 434 of the Civil Code of the Russian Federation, “A contract in writing can be concluded by drawing up one document signed by the parties, as well as by exchanging documents by postal, telegraph, teletype, telephone, electronic or other connections, allowing to reliably establish that the document comes from the party under the contract.
Thus, the current legislation of the Russian Federation allows the execution by the parties of civil legal relations of transactions using facsimile reproduction of a signature by means of mechanical or other copying, electronic signature or other analogue of a handwritten signature, i.e. electronic document exchange.
In addition, the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation) fixed the admissibility of electronic documents as a means of proof. So, in accordance with paragraph 3 of Article 75 of the Arbitration Procedure Code of the Russian Federation, « Documents received by facsimile, electronic or other communication, including using the Internet, as well as documents signed with an electronic signature or other analogue of a handwritten signature, are allowed as written evidence in the cases and in the manner established by this Code, other federal laws, other normative legal acts or an agreement, or determined within the limits of their powers by the Supreme Arbitration Court of the Russian Federation"(a similar provision is contained in paragraph 1 of Article 71 of the Civil Procedure Code of the Russian Federation).
Thus, the legislation of the Russian Federation provides the opportunity to use facsimile copies and documents transmitted via e-mail (in scanned form) as material evidence.
Meanwhile, at present, when resolving disputes arising from civil legal relations, formalized by exchanging documents via facsimile or the Internet, the courts do not have a unified position on the issue of classifying "fax" and electronic documents as admissible evidence.
An analysis of the existing judicial practice, in terms of attaching facsimile copies of documents and documents transmitted via e-mail (in scanned form) to the court case and their examination as evidence, allows us to draw the following conclusions:
1. Facsimile copies of documents and documents transmitted via e-mail (in scanned form) are regarded by the court as evidence in the case, provided that there is a clause in the contract / agreement, according to which these copies have the status of originals.
The legitimacy of the stated position is confirmed by existing judicial practice, incl. Decree of the Federal Antimonopoly Service of the North-Western District of June 1, 2010 No. A56-13328 / 2009, Decree of the Federal Antimonopoly Service of the Urals District of December 13, 2010 No. Ф09-10256 / 10-СЗ, Resolution of the Seventeenth Arbitration Court of Appeal of January 27, 2011 No. AP-13499 /2010-GK, Decree of the Federal Antimonopoly Service of the Far Eastern District of August 13, 2009 No. F03-3794/2009, Determination of the Supreme Arbitration Court of the Russian Federation of February 7, 2008 No. 653/08 in case No. A09-8896 / 06-4.
2. Screenshots, printouts of e-mails are not proper and indisputable evidence in court.
The legitimacy of the stated position is confirmed by existing judicial practice, incl. Decree of the Federal Antimonopoly Service of the Moscow District dated February 3, 2011 No. KG-A40 / 210-11.
3 . Copies of letters received by e-mail are evidence in court, provided that the other party does not provide the court with dissimilar copies and if it is possible to establish the true content of the original source using other evidence.
The legitimacy of the stated position is confirmed by existing judicial practice, incl. Decree of the Federal Antimonopoly Service of the Volga District dated September 15, 2010 in case No. A12-23661 / 2009.
An analysis of the practice of considering disputes by the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation on the issue of the admissibility of electronic documents and documents transmitted by facsimile, allows us to conclude that these documents are evidence in the trial, provided that the procedure for exchanging documents via a facsimile communication device or via the Internet is provided for by the contract concluded between the parties .
Thus, the analysis of judicial practice allows us to distinguish three types of documents (in addition to the originals) confirming the conclusion and execution of the relevant agreements:
Copies of documents sent by fax;
Copies of documents transmitted in scanned form using the Internet;
Screenshots, printouts of e-mails (e-mail notifications).
Meanwhile, in order to protect their rights when doing business, the process of concluding and executing relevant agreements must be accompanied by the exchange of only original documents.
However, when concluding and executing contracts by exchanging facsimile copies of documents or electronic documents and in order to minimize risks, we recommend the following:
1. In the text of the main agreement:
Provide for the possibility of transferring documents by fax or e-mail;
Set such documents as originals;
Specify information about the fax number and e-mail addresses by which documents will be exchanged;
2. Organize the maintenance of registers of incoming and outgoing correspondence sent and received by facsimile and electronic communications.
3. Set the exact time and current date in the fax settings.
If the fax function is available to create reports on received and sent messages, print out such reports and file them into the log of incoming and outgoing correspondence.
4. Draft documents submitted to the counterparty for approval should be sent without the signature of an authorized person.
5. In accordance with the tax legislation and the legislation on accounting, the primary documentation drawn up in the course of the execution of the relevant agreement must be presented only in the form of original documents.
6. The text of the main contract, additional agreements to the contract, as well as the agreement on termination of the contract must be presented in originals.
The procedure for the exchange of electronic documents, as well as "fax copies" of documents must be agreed upon by the Parties and fixed in the Agreement. The possibility of using “non-original” documents in resolving disputes between the parties depends on the competent wording of these conditions.
It should be noted that in practice there are cases when unscrupulous counterparties forge signatures and seals affixed by another counterparty in an electronic document, and also change the text of the contract, including conditions unfavorable for the counterparty.
In this connection, when resolving a dispute in court, the parties submit to the court non-identical copies of the same document, i.e. the same document signed by the parties containing different conditions.
In this case, it is practically impossible for the court to determine which party provided the original copy of the document.
According to paragraph 6 of Article 71 of the Arbitration Procedure Code of the Russian Federation, "Arbitration court cannot be considered proven fact, confirmed only by a copy of the document or other written evidence, if the original document is lost or not submitted to the court, and the copies of this document submitted by the persons participating in the case are not identical to each other and it is impossible to establish the true content of the original source with the help of other evidence.
Based on this rule, copies of the document will not be considered by the court as evidence in the circumstances specified above.
Meanwhile, the fact of falsification of documents transmitted by e-mail or fax can be established through a forensic examination.
According to the information received from Izhevsk Expert Bureau LLC, there are several methods for detecting forgery of documents in the described case:
1. chemical analysis of the signature on a paper copy of the contract;
2. analysis of the print impression.
It should be noted that the probability of detecting forgery of documents by these methods is not high.
Despite the risks described in this opinion from the execution of contracts by exchanging copies of documents by facsimile or electronic communication, there is a way to protect against illegal actions of counterparties, expressed in the forgery of signed documents.
In accordance with Article 2 of the Federal Law of April 6, 2011 No. 63-FZ "On Electronic Signature" (hereinafter referred to as the "Signature Law"), an electronic signature is information in electronic form that is attached to other information in electronic form ( signed information) or is otherwise associated with such information and which is used to identify the signer of the information.
According to part 1 of article 6 of the Signature Law, “Information in electronic form signed with a qualified electronic signature is recognized as an electronic document equivalent to a paper document signed with a handwritten signature, except if federal laws or regulations adopted in accordance with them establish a requirement that the document be drawn up exclusively on paper ".
In accordance with Article 5 of the Signature Law, a qualified electronic signature is an electronic signature that meets the following criteria:
1. obtained as a result of cryptographic transformation of information using an electronic signature key;
2. allows you to identify the person who signed the electronic document;
3. allows you to detect the fact of making changes to an electronic document after the moment of its signing ;
4. is created using electronic signature means;
5. the electronic signature verification key is specified in the qualified certificate;
6. To create and verify an electronic signature, electronic signature tools are used that have received confirmation of compliance with the requirements established in accordance with the Law.
Thus, the use of an electronic signature when concluding agreements by exchanging “fax” copies of signed documents or electronic documents makes it possible to detect the fact of making changes to an already signed document, which is a guarantee of the security of a party in a lawsuit in the event of a dispute.
In addition, an electronic document signed with a qualified electronic signature is recognized as equivalent to a paper document signed with a handwritten signature.
