Features of an Electronic Transaction as Evidence in Court

Authors

DOI:

https://doi.org/10.26512/lstr.v14i1.40374

Keywords:

Procedural Law. Evidence Base. Electronic Contracts. Electronic Documents. Judicial Process.

Abstract

[Purpose] This article is aimed at revealing the theoretical features of an electronic transaction as evidence in the procedural and legal field of a judicial instance.

[Methodology/Approach/Design] The leading method of studying this issue is a combination of materials and methods of scientific knowledge. The main one is the dialectical method, which was used during the entire study and is considered the basic one in all components of the work, which made it possible to analyse comprehensively the theoretical developments of domestic and foreign scientists, as well as to study the judicial practice of applying the regulatory framework in the evidentiary process and the practical activities of leading lawyers in the judicial process of using electronic evidence.

[Findings] The relevance of this article is due to the increasing trend in the use of electronic transactions, as well as the use of the latter in court as evidence. So, the legal nature of electronic transactions is analysed here in detail, namely: the history of occurrence, approval by national legislation, methods and conditions of conclusion, as well as legal force in legal relations between individuals and legal entities, the methodological basis for the study of the concept of electronic transactions has been determined, and their sources of legal regulation of their existence have been identified. The article provides a list of characteristic features of electronic transactions, reveals the main methods of their conclusion, justifies the effectiveness of using electronic transactions in courts as an evidence base, identifies the main legal omissions and shortcomings of the regulatory framework.

[Practical Implications] The materials of this article provide applied value in the course of the reform and improvement of procedural legislation, as well as the development of methodological manuals for training and skill development of practising jurists and lawyers.

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Author Biographies

Zaripa Adanbekova, Turan University

Zaripa Adanbekova is a PhD Student at the Department of Jurisprudence and International Law, Turan University, Almaty, Republic of Kazakhstan.

Aiman B. Omarova, Al-Farabi Kazakh National University

[Purpose] This article is aimed at revealing the theoretical features of an electronic transaction as evidence in the procedural and legal field of a judicial instance.

[Methodology/Approach/Design] The leading method of studying this issue is a combination of materials and methods of scientific knowledge. The main one is the dialectical method, which was used during the entire study and is considered the basic one in all components of the work, which made it possible to analyse comprehensively the theoretical developments of domestic and foreign scientists, as well as to study the judicial practice of applying the regulatory framework in the evidentiary process and the practical activities of leading lawyers in the judicial process of using electronic evidence.

[Findings] The relevance of this article is due to the increasing trend in the use of electronic transactions, as well as the use of the latter in court as evidence. So, the legal nature of electronic transactions is analysed here in detail, namely: the history of occurrence, approval by national legislation, methods and conditions of conclusion, as well as legal force in legal relations between individuals and legal entities, the methodological basis for the study of the concept of electronic transactions has been determined, and their sources of legal regulation of their existence have been identified. The article provides a list of characteristic features of electronic transactions, reveals the main methods of their conclusion, justifies the effectiveness of using electronic transactions in courts as an evidence base, identifies the main legal omissions and shortcomings of the regulatory framework.

[Practical Implications] The materials of this article provide applied value in the course of the reform and improvement of procedural legislation, as well as the development of methodological manuals for training and skill development of practising jurists and lawyers.

Saulegul Yermukhametova, Al-Farabi Kazakh National University

Saulegul Yermukhametova is a PhD in Law, Acting Associate Professor at the Department of Civil Law and Civil Procedure, Labor Law, Al-Farabi Kazakh National University, Almaty, Republic of Kazakhstan.

Saida Assanova, Al-Farabi Kazakh National University

Saida Assanova is the Senior Lecturer at the Department of Civil Law and Civil Procedure, Labor Law, Al-Farabi Kazakh National University, Almaty, Republic of Kazakhstan.

Serikkali Tynybekov, Al-Farabi Kazakh National University

Serikkali Tynybekov is a Full Doctor in Law, Professor, Head of the Department of Civil Law and Civil Procedure, Labor Law, Al-Farabi Kazakh National University, Almaty, Republic of Kazakhstan.

References

ALJNEIBI, KH. (2016). The scope of electronic transactions and electronic evidence in the courts of the United Arab Emirates. Digital Evidence and Electronic Signature Law Review, 11, 37-45.

ANANKO, A. (2001). Electronic form of transactions in international trade. Available at: https://oborot.ru/articles/elektronnaya-forma-sdelki-v-mezhdunarodnoj-torgovle-i33631.html.

BENESH, A.M. (2018). Security of a notary on the Internet. Computer and Internet in notarial practice. Moscow: Walters Kluver.

BIASIOTTI, M., BONICCI M. P. J., CANATACCI, J., & TURCHI, F. (2018). Handling and exchanging electronic evidence across Europe. Luxembourg: Springer.

COUNCIL OF EUROPE. (2001). Recommendation Rec (2001) 8 of the Committee of Ministers. “On self-regulation concerning cyber content (self-regulation and user protection against illegal or harmful content on new communications and information services)”. Available at: https://www.coe.int/en/web/freedom-expression/committee-of-ministers-adopted-texts/-/asset_publisher/aDXmrol0vvsU/content/recommendation-rec-2001-8-of-the-committee-of-ministers-to-member-states-on-self-regulation-concerning-cyber-content-self-regulation-and-user-protecti?_101_INSTANCE_aDXmrol0vvsU_viewMode=view/.

EUROPEAN UNION (2014). Regulation (EU) No. 910 “On Electronic Identification and Trust Services for Electronic Transactions in the Internal Market and Repealing Directive 1999/93/EC”. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014R0910.

JOSEPH, G. P. (2002). Internet and email evidence (Part 2). The Practical Lawyer, 1, 17-28.

KANEV, V. S., & SHEVTSOVA, YU. V. (2018). Basics of modeling and managing operational risks in e-commerce and telecommunications. Moscow: Goryachaya Liniya – Telekom.

KAZAKHSTAN. (1994). Civil Code of the Republic of Kazakhstan. Available at: https://online.zakon.kz/document/?doc_id=1006061.

KAZAKHSTAN. (2014). Concept of informatization of the judicial system of the Republic of Kazakhstan until 2020. Available at: https://studylib.ru/doc/104339/koncepciya-informatizacii-sudebnoj-sistemy-rk-do-2020-goda.

KAZAKHSTAN. (2004). Decree of the President of the Republic of Kazakhstan No. 1471 “On the State Program for the Formation of “Electronic Government” in the Republic of Kazakhstan for 2005-2007”. Available at: https://adilet.zan.kz/rus/docs/U040001471_/links.

KAZAKHSTAN. (2007). Decree of the President of the Republic of Kazakhstan No. 310 “On Further Measures to Implement the Development Strategy of Kazakhstan until 2030”. Available at: https://adilet.zan.kz/rus/docs/U070000310_/history.

KAZAKHSTAN. (2003). Law of the Republic of Kazakhstan No. 370-II “On Electronic Document and Electronic Digital Signature”. Available at: https://online.zakon.kz/document/?doc_id=1035484.

KAZAKHSTAN. (2015). Law of the Republic of Kazakhstan No. 418-V ZRK “On Informatization”. Available at: https://adilet.zan.kz/rus/docs/Z1500000418.

KOSCIOLEK, A., FLAGA-GIERUSZYNSKA, K., GOLACZYNSKI, J., & SZOSTEK, D. (2016). Computerization of civil proceedings. Theory and practice. Warsaw: C.H. Beck.

MASON, S. (2016). The use of electronic evidence in civil and administrative law proceedings and its effect on the rules of evidence and modes of proof. Available at: https://rm.coe.int/1680700298.

MASON, S., & SENG, D. (2017). Electronic evidence. London: University of London.

MEDVEDED, I. T. (2007). Electronic document and notarial activity. Moscow: Publishing House FRPK.

PETRENKO, V. S. (2018). Electronic evidence as an element of information technology in civil proceedings. Young Scientist, 1(54), 111-115.

POLAND. (1964). Civil Procedure Code of the Republic of Poland. Available at: https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU1964043029.

RUSSIA. (2009). Resolution of the Federal Antimonopoly Service of the Moscow District No. KA-A40/14666-09. Available at: http://www.consultant.ru/cons/cgi/online.cgi?req=doc&base=AMS&n=121584#014015522268132607.

RUSSIA. (2009). Resolution of the Federal Antimonopoly Service of the Moscow District No. KA-A40/14666-09. Available at: http://www.consultant.ru/

ALJNEIBI, KH. (2016). The scope of electronic transactions and electronic evidence in the courts of the United Arab Emirates. Digital Evidence and Electronic Signature Law Review, 11, 37-45.

ANANKO, A. (2001). Electronic form of transactions in international trade. Available at: https://oborot.ru/articles/elektronnaya-forma-sdelki-v-mezhdunarodnoj-torgovle-i33631.html.

BENESH, A.M. (2018). Security of a notary on the Internet. Computer and Internet in notarial practice. Moscow: Walters Kluver.

BIASIOTTI, M., BONICCI M. P. J., CANATACCI, J., & TURCHI, F. (2018). Handling and exchanging electronic evidence across Europe. Luxembourg: Springer.

COUNCIL OF EUROPE. (2001). Recommendation Rec (2001) 8 of the Committee of Ministers. “On self-regulation concerning cyber content (self-regulation and user protection against illegal or harmful content on new communications and information services)”. Available at: https://www.coe.int/en/web/freedom-expression/committee-of-ministers-adopted-texts/-/asset_publisher/aDXmrol0vvsU/content/recommendation-rec-2001-8-of-the-committee-of-ministers-to-member-states-on-self-regulation-concerning-cyber-content-self-regulation-and-user-protecti?_101_INSTANCE_aDXmrol0vvsU_viewMode=view/.

EUROPEAN UNION (2014). Regulation (EU) No. 910 “On Electronic Identification and Trust Services for Electronic Transactions in the Internal Market and Repealing Directive 1999/93/EC”. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014R0910.

JOSEPH, G. P. (2002). Internet and email evidence (Part 2). The Practical Lawyer, 1, 17-28.

KANEV, V. S., & SHEVTSOVA, YU. V. (2018). Basics of modeling and managing operational risks in e-commerce and telecommunications. Moscow: Goryachaya Liniya – Telekom.

KAZAKHSTAN. (1994). Civil Code of the Republic of Kazakhstan. Available at: https://online.zakon.kz/document/?doc_id=1006061.

KAZAKHSTAN. (2014). Concept of informatization of the judicial system of the Republic of Kazakhstan until 2020. Available at: https://studylib.ru/doc/104339/koncepciya-informatizacii-sudebnoj-sistemy-rk-do-2020-goda.

KAZAKHSTAN. (2004). Decree of the President of the Republic of Kazakhstan No. 1471 “On the State Program for the Formation of “Electronic Government” in the Republic of Kazakhstan for 2005-2007”. Available at: https://adilet.zan.kz/rus/docs/U040001471_/links.

KAZAKHSTAN. (2007). Decree of the President of the Republic of Kazakhstan No. 310 “On Further Measures to Implement the Development Strategy of Kazakhstan until 2030”. Available at: https://adilet.zan.kz/rus/docs/U070000310_/history.

KAZAKHSTAN. (2003). Law of the Republic of Kazakhstan No. 370-II “On Electronic Document and Electronic Digital Signature”. Available at: https://online.zakon.kz/document/?doc_id=1035484.

KAZAKHSTAN. (2015). Law of the Republic of Kazakhstan No. 418-V ZRK “On Informatization”. Available at: https://adilet.zan.kz/rus/docs/Z1500000418.

KOSCIOLEK, A., FLAGA-GIERUSZYNSKA, K., GOLACZYNSKI, J., & SZOSTEK, D. (2016). Computerization of civil proceedings. Theory and practice. Warsaw: C.H. Beck.

MASON, S. (2016). The use of electronic evidence in civil and administrative law proceedings and its effect on the rules of evidence and modes of proof. Available at: https://rm.coe.int/1680700298.

MASON, S., & SENG, D. (2017). Electronic evidence. London: University of London.

MEDVEDED, I. T. (2007). Electronic document and notarial activity. Moscow: Publishing House FRPK.

PETRENKO, V. S. (2018). Electronic evidence as an element of information technology in civil proceedings. Young Scientist, 1(54), 111-115.

POLAND. (1964). Civil Procedure Code of the Republic of Poland. Available at: https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU1964043029.

RUSSIA. (2009). Resolution of the Federal Antimonopoly Service of the Moscow District No. KA-A40/14666-09. Available at: http://www.consultant.ru/cons/cgi/online.cgi?req=doc&base=AMS&n=121584#014015522268132607.

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Published

2022-05-20

How to Cite

ADANBEKOVA, Z.; OMAROVA, A. B. .; YERMUKHAMETOVA, S.; ASSANOVA, S.; TYNYBEKOV, S. . Features of an Electronic Transaction as Evidence in Court. Law, State and Telecommunications Review, [S. l.], v. 14, n. 1, p. 98–112, 2022. DOI: 10.26512/lstr.v14i1.40374. Disponível em: https://periodicos.unb.br/index.php/RDET/article/view/40374. Acesso em: 11 aug. 2022.