Concept and functions of e-justice in the digital economy

UDC 346.1
Publication date: 31.08.2020
International Journal of Professional Science №8-2020

Concept and functions of e-justice in the digital economy

Solovyanenko Nina Ivanovna,
PhD, Legal Sciences, Senior Research Fellow,
Business and Corporate Law Department,
Institute of State and Law RAS

Abstract: The article deals with the concept of "electronic justice" and features of the use of electronic justice for the consideration of economic disputes. In the digital economy e-justice is one of the legal constructions that provide a comfortable legal environment for economic activity. This is a complex of legal relations and technological solutions that provides individuals and legal entities with the opportunity to use digital technologies at all stages of the judicial process, to obtain information about the activities of courts through electronic access. The e-justice mechanism includes video and audio recording of court sessions, electronic document management with the use of an electronic signature, an electronic archive for storing electronic documents, the use of cloud technologies, as well as the use of electronic documents as evidence. Improving the legal regulation of e-justice in the digital economy, along with reforming procedural legislation, should include the development of a Federal law on electronic documents.
Keywords: electronic justice, digital economy, electronic document, electronic signature, cloud technologies in court, digital technologies in the judicial process, electronic evidence, digital divide.


Introduction

In The national program “Digital economy of the Russian Federation”, digital data is defined as the main factor of sustainable economic and social development and strengthening of Russia’s competitiveness at the global level. The digital economy of the Russian Federation is a platform for creating a new model of interaction between business, government, and experts [1]. The tasks of digital development are set by the decree of the President of Russia dated 07.05. 2018. «On national goals and strategic development goals of the Russian Federation for the period up to 2024».

Appropriate legislation and a favorable legal regime are among the basic prerequisites for the creation and use of electronic technologies in the economy. E-justice is one of the most important legal institutions designed to create a comfortable legal environment for the digital economy. Accordingly, the work of the judicial system in the digital environment attracts increased attention of, citizens businesses and public authorities.

The concept of electronic justice has not yet been defined in Russian legislation and is controversial in legal doctrine. In the legal  literature e-justice is characterized as  a set of automated information systems and services that provide software and technical solutions for the publication of court acts, access of the parties to the legal dispute to the materials of the  court case in electronic form, or  consideration of cases by the courts (including the resolution of economic disputes) using information and communication technologies and systems [2].

In foreign legal systems, е-justice is usually an electronic public service and one of the elements of e-government. A UN Study (2014) on these issues argues that e-government and innovative public services are tools for sustainable development, as they are effective, in demand, and meet the rules of transparency and accountability [3]. Such expert conclusions have a powerful impact on the implementation of E-justice.

Results and discussion

The use of information systems in courts is assessed by international experts as “improving the efficiency of services provided to individuals and society, since it reduces the number of court cases and their consideration time, as well as ensure transparency and accessibility of justice» [4]. From the same point of view, the use of modern legal tools typical of e-government in the implementation of justice is considered, such as registers and other sources of reliable information, electronic payment systems, authentication and identification systems, unified electronic registration for access to all public services, legally recognized electronic delivery of documents and messages (certified e-mail). The electronic method of legal proceedings is considered the main one and is subject to application, while «paper» legal proceedings are an exception. The rationale for this approach emphasizes the need to get rid of the» paper tyranny «of outdated and inadequate information technologies and the» shocking «and» pervasive » lack of access to justice for ordinary people or small businesses. So, the current vision of the justice system is » digital by default and by design. By default, digital means digital services that are so simple and convenient that all those who can use them will decide to do so, while those who cannot are not excluded. However, electronic access to justice means more than being able to fill out an online form and feel comfortable in the process. It is important for ensuring the rule of law [5].

In integration associations of States, such as the EU or the EAEU, issues of cross-border access to justice are relevant [6]. The European e-justice portal provides information about justice systems throughout the EU. The European Judicial network for civil and commercial cases simplifies the interaction of the judiciary in EU countries to improve judicial cooperation and facilitate cross-border access to justice.

The concept of electronic justice is specified in the Decree of the Government of the Russian Federation of December 27, 2012. «On the Federal target program of development of the Russian judicial system for 2013-2020». This concept has a broad interpretation: it is a complex of legal relations and technological solutions that provide citizens and legal entities with the opportunity to use digital technologies in the judicial process and get electronic access to information; the activity of courts in the implementation of justice in electronic form.  These legal relations also cover court records management and electronic document management with the use of electronic signatures, scanning and storing electronic images of court documents, converting court archives to electronic form, video and audio recording of the course of court sessions, and electronic evidence. In order to develop information technologies  in the judicial system, it is planned to create: a «cloud» computing architecture for automating judicial and general record keeping [7]; creation of an electronic archive for storing electronic documents; use of mobile devices as access to information resources, software packages and databases of the Federal courts of the Russian Federation through the use of «cloud» technologies for judges and employees of the court apparatus-mobile justice.

The judicial authorities in their activities use system automation proceedings — software and hardware capable of maintaining court records; implementation and record in the electronic form of proceedings (including   information  system of the Supreme Court of the Russian Federation; state information system «Justice» ; program complex » Litigation proceedings»»; information system «My arbitrator»; information system «Court records management»”, «Collection of decisions of arbitration courts», etc.). In addition, the court is granted access to information from the Unified identification and authentication system in the infrastructure that provides information and technological interaction of information systems used to provide state and municipal services in electronic form (ESIA), the Unified state register of legal entities), the Unified state register of real estate,  the State real estate cadaster [7].

Because of the continuing digital divide Russian legislation does not provide for the default use of documents in digital format and does not require the complete abolition of traditional, «non-electronic» legal proceedings or paper document management. The law focuses on ensuring maximum judicial protection of the rights and interests of citizens and legal entities, without equating electronic justice with an electronic public service.

On June 23, 2016 the Federal law regarding the use of electronic documents in the activities of judicial authorities was adopted. The purpose of the Federal law is to regulate electronic document management in criminal, civil, commercial and administrative proceedings, as well as to ensure that electronic documents can be used as evidence.  The Federal law amends the Сode of Criminal Procedure of the Russian Federation, Commercial Procedure Code, Civil Procedure Code of the Russian Federation, Code of Administrative Procedure of the Russian Federation and a number of Federal laws [8]. In order to ensure the correct and uniform application of these legal provisions by courts, The Resolution of the Plenum of the Supreme Court of the Russian Federation оn certain issues of application of legislation regulating the use of documents in electronic form in the activities of courts was adopted.

Main innovations:

– documents can be submitted to the courts in electronic form (in the form of an electronic image or electronic document) and signed with an electronic signature;

– it is possible to create and send judicial acts in the form of electronic documents.

During 2016, the Procedure for submitting documents to the Supreme Court of the Russian Federation in electronic form, including in the form of an electronic document (order of the Chairman of the Supreme Court of the Russian Federation dated November 29, 2016 ) and the Procedure for submitting documents to the arbitration courts of the Russian Federation in electronic form, including in the form of an electronic document ( order of the Judicial Department at the Supreme court of the Russian Federation dated December 28, 2016) were adopted.

In accordance with the above-mentioned regulations documents created initially in electronic form or documents in the form of electronic images (copies) of documents made initially on paper and converted into electronic form by scanning can be submitted to the court.

In accordance with the Federal law «On electronic signature», participants in electronic interaction can use any type of electronic signature. At the same time, in specific legal relations, an electronic signature of a certain type may be mandatory for use by virtue of a Federal law, as well as regulations adopted in accordance with it.

If electronic documents are submitted to the court, they must contain a qualified electronic signature of the person who submits the documents. If electronic images of documents are sent to the court, they are signed with an electronic signature or a qualified electronic signature of the named person.

A qualified electronic signature is considered by the legislator as the most reliable way to identify the signatory. An electronic document signed with a qualified electronic signature has the same legal effect as a paper document signed with a handwritten signature in all legal relations, except in cases where Federal law requires a paper document [8]. For example, in commercial courts а provisional measures application (application for the securing of property interests in the dispute) must be signed with a qualified electronic signature of the applicant.

In the form of electronic images or in the form of electronic documents, evidence of compliance with the procedural conditions for filing an appeal to the court (a document on payment of state duty created using online payment systems, ATMs, mobile applications) is presented. They are signed with an electronic signature or a qualified electronic signature of the person who submits the documents.

A judicial act in the form of an electronic document is signed by a judge (or, if it is adopted collectively, by all the judges who considered the case) using a qualified electronic signature.

     The use of electronic documents in the administration of justice is regulated by both procedural rules and technological requirements.

The appeal to the court must be submitted in PDF format as a separate file, the size of which does not exceed 30 MB. Electronic documents with text content attached to the request may have the following formats: PDF, RTF, DOC, DOCX, XLS, XLSX, ODT; documents with graphic content: PDF, JPEG (JPG), PNG, TIFF. The files and data contained in them must be accessible for work, not protected from copying and printing, and must not include interactive and multimedia elements, embedded scripts in JavaScript or any other programming languages. The electronic signature must meet the requirements for a qualified electronic signature. When creating it, you must use the PKCS#7 format (Public-Key Cryptography Standard#7. Each electronic signature must be contained in a separate file (detached electronic signature).

Documents in electronic form are submitted to the commercial court by filling out a form in the information system “My arbitrator”. A personal account is created in the name of an individual who submits documents in electronic form to the court, or in the name of a representative. A notification containing the date and time of receipt of documents in the information system (fixed automatically in Moscow time) is sent to your personal account. The date and time are checked by the court when considering the issue of compliance with the deadline for sending an appeal to the court.

As already mentioned in this paper, due to the continuing digital divide in Russia and insufficient technical capabilities for the widespread use of electronic document management, Russian legislation does not abandon the traditional «non-electronic» legal proceedings or documents on paper. The law establishes the legal equivalence of documents in electronic form and paper documents: they can be filed in court in paper or electronic form. The judicial act in electronic form is supplemented by a copy of this judicial act on paper; copies of judicial acts in hard copy may be sent by the commercial court to the persons participating in the case by registered mail with a notification of delivery, or delivered to them on receipt, etc.

Conclusion

Promotion and improvement of e-justice in the context of digital transformation should be carried out not only by making appropriate changes and additions to Russian procedural laws. It is equally important to restructure the legal framework in the field of document management, updating it, eliminating gaps and adding legal structures related to the legal regime, creation, use and storage of electronic documents.  It is also necessary to regulate the legal issues of cross-border use of electronic documents and electronic signatures.  To resolve these issues a special Federal law «On electronic document» should be adopted.

References

1. National program " Digital economy of the Russian Federation» URL: https://digital.ac.gov.ru/about.
2. Laptev V. A. Solovyanenko N. I. Electronic justice. Electronic document management: a scientific and practical guide. Under the General editorship of S. Yu. Chuchi. M., 2017.
3. United Nations E-government Survey 2014. E-Government for the Future We Want // United Nations New York, 2014. URL: https://publicadministration.un.org/egovkb/Reports/UN-E-Government-Survey-2014.
4. Joao Rosa, Claudio Teixeira, Joaquim Sousa Pinto. Risk factors in e-justice information systems // Government Information Quarterly. Volume 30, Issue 3, July 2013.
5. Lord Chancellor, Lord Chief Justice and Senior President of Tribunals, Transforming our Justice System: Joint Vision Statement, September 2016, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/553261/joint-visionstatement.pdf 4 H.
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8. Bobyleva M. p. Managerial document management: from paper to electronic. Questions of theory and practice. Moscow, 2019. (2nd edition, revised and expanded).