Art. 71 Code of Civil Procedure of Ukraine speaks of written evidence, the law outlines their circle, the requirements for them. However, the application of the article has a number of important nuances.
The concept of evidence in litigation
Evidence - a category of procedural law that determines the procedure, form and scope of proceedings of civil disputes in a judicial process.
The proceedings are based on a study of the facts, on the basis of which the judge decides on the claim. Evidence includes information about these very facts.
Art. 71 Code of Civil Procedure provides a list of evidence that may be provided:
- witness's testimonies;
- explanations of parties or representatives of third parties;
- audio and video recordings;
- expert opinion;
- documents executed on paper or in electronic, digital form.
The last category is information fixed on paper or in another form.
Legislative regulation
Art. 71 Code of Civil Procedure of the Russian Federation is applied subject to other articles of the code. Why? It is a whole document, and the application of one or another norm is impossible in isolation from others. The rules, provision, assessment of evidence are based on the same principles. The judge must check:
- whether they are relevant to the circumstances under study;
- whether they are issued by a competent authority or organization;
- their relationship with other evidence in the case.
Authentication is only characteristic of written evidence. If we talk about the expert’s opinion, the law punishes for giving knowingly false conclusions, witnesses are liable for false testimonies.
Now a little about the article itself. It does not provide an exhaustive list of what is permitted to be classified as written evidence. If there are no violations of the law, the document is quite suitable for use in court proceedings, even if it is not mentioned directly in the law.
The legislation contains two acts that govern the creation of copies of documents:
- Decree of the Presidium of the USSR Armed Forces of 08/04/1983 No. 9779-X.
- GOST R 6.30-2003 - contains the rules on the formation of management documentation in state organizations, it is applied, in particular, in the courts when maintaining documentation.
Art. 71 Code of Civil Procedure of the Russian Federation with the comments of 2016 refers to the last two acts. Moreover, GOST, having a recommendatory nature, is actively used by non-governmental organizations. The decree continues to be valid today.
Who represents them
Art. 71 Code of Civil Procedure does not limit the participants in the provision of evidence. On the contrary, the parties are obliged to justify the circumstances to which they refer. In this regard, there is no difference between the plaintiff and the defendant. The first side is the attacker and is primarily responsible for proving. The defendant, referring to something, is obliged to refute the claims of the plaintiff. Explanations alone are not enough.
Laws sometimes distribute the burden of proof between the plaintiff and the defendant. For example, in a case of harm, the plaintiff proves the fact of the infliction, and the defendant - the absence of guilt in proving the fact. In Art. 71 of the Code of Civil Procedure of the Russian Federation with comments, unfortunately, the nuance of who should prove what and what is not registered.
For third parties, they are subject to the same rules. At the same time, they may have documents related to the dispute, and the court may ask them to provide.
Classification of written evidence
The classification of evidence by:
- subject;
- content;
- form;
- nature of the source.
It should be noted that failure to comply with the requirements deprives access to justice.
Subdivision
If we talk about the subject, they can be official and unofficial. The first are issued by state or municipal authorities, enterprises and organizations. The second come from individuals. Official documents are: any certificates, contracts, administrative acts (for example, a decision on the provision of a land plot or an order on appointment to a post).
Unofficial documents are created by individuals (people). This may include notes, diaries, electronic correspondence, etc. Documents created by individual entrepreneurs in the course of their activities are considered official (agreements, personnel documents, etc.).
Content Division
The content divides them into administrative and informational or reference.
Administrative documents either carry the will of the subject of power, or reflect a change in the rights and obligations of a person. As an example, either an order or a contract is usually given.
Information evidence is considered letters, messages and other similar documents.
Presentation form
The law identifies several forms of preparation of documents:
- simple;
- qualified;
- notarial;
- electronic.
The simple form involves the preparation of a document in electronic or paper form with the signature of the persons who compiled it, or without it.
Qualified form means the creation of a document having the details specified by law (act on an accident at an enterprise).
Documents issued by state or municipal authorities have their own specifics. The law obliges to stamp, the content of the document must comply with regulatory documents in sections or paragraphs.
Documents issued by state bodies can be formed on forms with digital or other protection, for example, RAGS forms.
Notarial form - the preparation of documents (contracts, statements) on a special form or without it, but with the signature of a notary and its seal.
An electronic document is accepted with an electronic digital signature - a code certifying the authenticity of the paper. They can be created without EDS.
Nature of the source
Character implies the provision of a copy or original. As a rule, a copy is provided, unless otherwise specified by the norms of the current legislation in accordance with Part 2 of Art. 71 GIC.
How copies are certified by the court
The peculiarity of the civil process in a simpler procedure for checking copies, although the regulatory framework that governs the issue is the same.
Citizens, before filing a lawsuit, attach copies of the documents they plan to use to it.
The judge, opening the court hearing, first of all checks the authenticity of the papers. The party that provided the copies — usually the plaintiff — makes it possible to compare them with the originals. The judge or one of them, if there are several, puts on the copy his certifying signature.
Copies of papers provided by organizations are certified either by the above method, or otherwise. How exactly? Art. 71 Code of Civil Procedure does not say anything specifically, it refers to the norms of the current legislation.
How copies are certified by enterprises and organizations
The head of the organization or another person authorized for these actions has the right to make certification labels. The inscription "copy is correct" is made, the date of certification is put. Another official must make a note that the original is in the organization.
Another option: an inscription is made that “the copy is correct”, a signature is put, the name of the official, the date of certification.
Usually stamped. In practice, it can be replaced by the fact that a copy is made on letterhead.
Letterhead is an image with contacts or organization data. This is an optional digital security document.
The creation of copies with signatures and seals is usually used in the practice of arbitration proceedings, however, if necessary, these rules can be applied in civil cases.
If the original is not submitted
Part 2, Art. 71 Code of Civil Procedure of the Russian Federation obliges to provide the original, when this is directly stated in the law. How it works? For example, when filing a lawsuit for divorce, the plaintiff must attach the original marriage certificate to the lawsuit. If a copy is attached, the judge shall recognize the claim filed with defects.
In practice, the judge requests that the originals of all documents be provided without exception. Such claims mean that the court violated the requirements of Art. 71 Code of Civil Procedure of the Russian Federation, especially if copies without originals are not accepted, and a decision is made based on the fact that evidence was not provided.
Conclusion
The practice of civil proceedings shows that it is easier for a participant in the process to provide an original document than to argue with a judge. Moreover, a higher authority may agree with the arguments of a colleague, and not the plaintiff or defendant.
At the same time, judges are not inclined to direct their attention to how the copy is certified if it is affixed with the seal and signature of the official. The assessment of evidence addresses the issue of how significant the violations are and whether they affect the impartiality of the court.