UDC 346.91

DOI 10.37749/2308-9636-2023-8(248) -6

O. Yu. Myniuk,

Candidate of Law, Associate Professor,

Associate Professor of the Department of Public Law,

Educational and Scientific Institute of Law,

State Tax University

ORCID ID 0000-0002-2348-9908

 

ELECTRONIC EVIDENCE AND POSSIBLE WAYS OF REQUIRING IT IN ECONOMIC PROCESSING

The article is devoted to theoretical and practical issues of studying electronic evidence and its retrieval in the economic process. The study of electronic evidence containing information about the subject of the dispute is an important element of the correct and proper resolution of such disputes and is one of the decisive factors in protecting the rights and interests of business entities. In light of international cooperation and the growing volume of cross-border business, the importance of understanding the legal principles and mechanisms of retrieving evidence in different jurisdictions and ensuring their effectiveness and protection of the rights of the parties is becoming increasingly important. In order to establish the facts and prove one’s case on an adversarial basis, in most economic cases it is necessary to collect a large amount of evidence, which will allow the court to make a reasoned decision.

Ukraine has its own legislation on the retrieval of electronic evidence in commercial proceedings, which contains relevant norms, rules for the collection, presentation and evaluation of electronic evidence by a commercial court, as well as mechanisms for ensuring access to it by the parties to the case.

An issue related to the retrieval of electronic evidence is the lack of reliability of such evidence. This can be caused by errors in the collection or processing of evidence, or the use of unreliable sources. Another issue is the issue of proving the reliability of electronic evidence. In the world, more and more business processes are conducted using electronic means, so it is important to be able to prove the reliability of electronic evidence in court. In the European Union, this problem is solved by the Electronic Signature Directive 1999/93/EC.

Sometimes situations may arise where evidence is owned or controlled by third parties and there is no way to access it, e.g. data confidentiality, lack of permission to access evidence.

There is a problem of uncertainty in the procedure for certifying and certifying copies of electronic evidence, given the specifics of certain electronic evidence (in particular, information from the Internet). The difficulty lies in the fact that by the time the case is considered by the court, such information may already be deleted, which significantly reduces the chances of proving the fact of its existence.

Attention is drawn to the differences in legislation on the collection of evidence in the countries of the European Union, which sometimes leads to difficulties in providing an evidentiary base. However, compliance with European standards can ensure the reliability and objectivity of evidence, which allows for informed decisions.

Keywords: business process, evidence, electronic evidence, means of proof, evidence retrieval.

 

List of used literature

  1. Fursa S. Ya., Tsyura T. V. Evidence and proof in civil proceedings: Scientific and practical manual. (Series: Procedural sciences). Kyiv: Publisher Fursa S. Ya., KNT, 2005. 256 p.
  2. Commercial Procedure Code of Ukraine: Law of Ukraine dated 06.12.2017 No. 2147-VIII. Verkhovna Rada of Ukraine. URL: https://zakon.rada.gov.ua/laws/show/2147-19#Text (access date: 11.06.2023).
  3. Grunyushkina S. A. The possibility of using the “Electronic Document” as a means of evidence in civil proceedings. Report at the VII International Conference “Law and the Internet”. URL: www/ifap.ru/pi107.
  4. 4. Vasiliev S. V. Comparative Civil Process. Textbook. K.: Alerta, 2015. 352 p.
  5. On electronic documents and electronic document flow: Law of Ukraine dated 22.05.2003 No. 851-15. Verkhovna Rada of Ukraine. URL: http://zakon0.rada.gov.ua/laws/show/851-15 (access date: 15.06.2023).
  6. Kalamayko A.Yu. The place of electronic means of evidence and some issues of their use in civil proceedings. Law and Innovations. 2015. No. 2. Pp. 115—116.
  7. On electronic trust services: Law of Ukraine dated 05.10.2003 No. 2155- VIII Verkhovna Rada of Ukraine. URL: https://zakon.rada.gov.ua/laws/show/2155-19#Text (access date: 15.06.2023).
  8. Directive EU/1999/93 of 13.12.1999 “On electronic signatures used within the Community” URL: https://zakon.rada.gov.ua/laws/show/994_240#Text (access date: 15.06.2023).
  9. Mynyuk O.Yu. The search for evidence in the economic process and the means of its provision. Legal Scientific Electronic Journal. 2023. No. 5, pp. 144—147.
  10. Naichenko A. M. Legislative consolidation of the institute of electronic evidence in the economic process – consequences of the reform or real necessity? Current jurisprudence. 2018. pp. 1—4.