Legal regulation of an electronic document. Legal regulation of the workflow in the organization. The concept of an electronic document, its meaning
STUDENT'S WORKING NOTEBOOK
Electronic archives
Sparyshev Viktor Alekseevich
Faculty 3 department 311
Extramural
Course __5__________
Group __501__________
Teacher (name)
Associate Professor Afanasyeva L.P.
Moscow 2017
EXPLANATORY NOTE
Student workbook on special discipline “Electronic archives”, specialty 080801 “Applied informatics in the information sphere”, 5 year faculty of 3 correspondence departments.
The workbook is intended for the organization of independent study by students of the 5th course on the theoretical material of the main topics of the course and the most important scientific and methodological literature, Internet resources, as well as applied software in the field of creating electronic publications. The workbook contains assignments that focus students on key aspects of the thematic sections of the course. Tasks are carried out independently on the basis of the development of recommended literature for each topic.
In accordance with the sections of the discipline program, the RTS consists of seven topics. The filling of each of the sections is evaluated on a five-point system. The first part of the notebook includes 4 tasks (0-20 points). For admission to the exam you need to score 11 points. The second part includes 3 topics (0-15 points). To set off, you need to score 10 points. In general, filling the notebook can be rated from 0 to 35 points. The workbook is handed over to the teacher for verification, after which the development of the material is checked during an individual interview. The student is asked questions on the sections of the notebook. In order to obtain credit, in addition to passing the material of the workbook, it is also necessary to attend practical classes and perform assignments.
Theme 1. Introduction
1. When studying this topic, special attention should be paid to the conceptual apparatus.
As in the law of the Russian Federation " About information, information technology and information protection»Definitions are given
informatization
documented information (document)
information system
Compare
What is the difference between these concepts?
Theme 2. Legal regulation of electronic documents.
Based on an analysis of the law, answer the questions.
1. What are the rights of the owner of information resources?
The owner of information resources enjoys all the rights provided for by law, including the right to:
To appoint a person who carries out economic management of information resources or their operational management;
To establish, within its competence, a regime and rules for processing, protecting information resources and access to them;
Define terms of disposal documents when copying and distributing them;
Dispose of them in accordance with the Civil Code of the Russian Federation as an object of intellectual property
2. What obligations should the owner fulfill to protect confidential and personal data?
According to the Federal Law of 07.27.2006 N 152-ФЗ (as amended on 07.07.2016)
"About personal data"
1. The operator, when processing personal data, is obliged to take the necessary legal, organizational and technical measures or to ensure their adoption to protect personal data from unlawful or accidental access to it, destruction, modification, blocking, copying, provision, distribution of personal data, as well as from other illegal actions regarding personal data.
2. The security of personal data is achieved, in particular:
1) the determination of threats to the security of personal data during their processing in personal data information systems;
2) the application of organizational and technical measures to ensure the security of personal data during their processing in personal data information systems necessary to fulfill the requirements for the protection of personal data, the implementation of which ensures the levels of personal data security established by the Government of the Russian Federation;
3) by using the procedures for assessing the conformity of information protection facilities that have passed in the prescribed manner;
4) evaluation of the effectiveness of measures taken to ensure the security of personal data prior to the commissioning of the personal data information system;
5) taking into account machine carriers of personal data;
6) the discovery of unauthorized access to personal data and the adoption of measures;
7) restoration of personal data modified or destroyed due to unauthorized access to them;
8) the establishment of rules for access to personal data processed in the personal data information system, as well as the registration and recording of all actions performed with personal data in the personal data information system;
9) control over measures taken to ensure the security of personal data and the level of security of personal data information systems.
3. How does the law guarantee the right of access to state information resources?
According to the Federal Law of July 27, 2006 N 149-ФЗ "On Information, Information Technologies and the Protection of Information"
1. Citizens (individuals) and organizations (legal entities) (hereinafter referred to as organizations) are entitled to search and receive any information in any form and from any sources, subject to the requirements established by this Federal Law and other federal laws.
2. A citizen (individual) has the right to receive from state bodies, local self-government bodies, their officials in the manner established legislation Russian Federation, information directly affecting his rights and freedoms.
3. The organization has the right to receive information from the state bodies and local self-government bodies directly related to the rights and obligations of this organization, as well as information necessary in connection with interaction with these bodies in the course of the organization's statutory activities.
4. Access to:
1) regulatory legal acts affecting the rights, freedoms and duties of a person and a citizen, as well as establishing the legal status of organizations and the powers of state bodies, local authorities;
2) information on the state of the environment;
3) information on the activities of state bodies and local governments, as well as on the use of budget funds (with the exception of information constituting state or official secret);
4) information accumulated in open collections of libraries, museums and archives, as well as in state, municipal and other information systems created or intended to provide citizens (individuals) and organizations with such information;
5) other information, the inadmissibility of restricting access to which is established by federal laws.
5. State bodies and local governments are obliged to provide access, including through the use of information and telecommunication networks, including the Internet, to information on their activities in Russian and the state language of the respective republic within the Russian Federation in accordance with federal laws, laws of constituent entities of the Russian Federation and regulatory legal acts of local authorities. A person who wants to access such information is not required to justify the need to obtain it.
6. Decisions and actions (inaction) of state bodies and local self-government bodies, public associations, officials that violate the right to access information may be appealed to a higher authority or a higher official or to a court.
7. In the event that as a result of an unlawful refusal to access information, untimely provision of it, or the provision of information that is knowingly inaccurate or does not correspond to the content of the request for information, losses are caused, such losses shall be compensated in accordance with civil law.
8. Information is provided free of charge:
1) on the activities of state bodies and local self-government bodies, posted by such bodies in information and telecommunication networks;
2) affecting the rights and obligations of the interested person established by the legislation of the Russian Federation;
3) other information prescribed by law.
9. The establishment of a fee for the provision by the state body or local government of information about its activities is possible only in cases and on conditions that are established federal laws.
4. Compare legal regulation
| legal force of a document on a machine medium in accordance with GOST 6.10.4-84. Unified documentation systems. Giving legal force to documents on a machine medium and a machinegram created by computer technology. The main provisions of GOST from 01.07.87 N 6.10.4-84 | legal force of a document received from an information system in Article 5 of the Law “On Information, Information Technologies and Information Protection” (2006) | legal force of an electronic document in the law "On Electronic Digital Signature" (2002) |
| 1.1. The document on a machine carrier must be recorded, produced and marked in accordance with the requirements GOST 6.10.3-83, GOST 8303-93, GOST 19768-93, GOST 20731-86, GOST 25465-95, GOST 25752-83, GOST 25764-83, OST 24.958.01-84 - OST 24.958.74-84, P 50-54-76-88, and the information is encoded in accordance with the all-Union classifiers of technical and economic information. In the absence of the necessary information in the all-Union classifiers, it is allowed to use the codes of registered intersectoral and industry classifiers. 1.2. A typogram should be created taking into account the requirements of state standards for unified documentation systems. 1.3. A document on a machine carrier and a machinegram should be used only if there are appropriate decisions of ministries and departments. 1.4. Transportation (transmission, forwarding, etc.) of a document on a machine medium and machine diagrams should be carried out with a cover letter drawn up according to GOST R 6.30-2003. 1.5. A document on a machine carrier and a machineogram become legal after fulfilling the requirements of this standard and signing a cover letter. 1.6. Writing a document on a machine medium and creating a machinegram should be based on data recorded in the source (primary) documents received through communication channels from automatic recording devices or in the process of automated problem solving. 1.7. At the request of the user organization, for visual control of a document created on a machine medium, it is converted into a human-readable form by various technical means of displaying data (displays, printing devices, etc.). A document on a machine medium or a machinegram must contain the following required details: name of the organization - the creator of the document; location of the organization - the creator of the document or postal address; Title of the document; date of manufacture of the document; the code of the person responsible for the correctness of the production of the document on a machine medium or machinegrams, or, as a rule, the code of the person who approved the document. | According to st11 1. The legislation of the Russian Federation or by agreement of the parties may establish requirements for documenting information. 2. In federal executive bodies, the documentation of information is carried out in the manner established by the Government of the Russian Federation. The rules of office work and document management established by other state bodies and local governments within their competence must comply with the requirements established by the Government of the Russian Federation regarding office work and document management for federal executive bodies. 4. In order to conclude civil law contracts or to draw up other legal relations in which persons exchanging electronic messages participate, exchanging electronic messages, each of which is signed with an electronic signature or another analogue of the handwritten signature of the sender of such a message, in the manner established by federal laws, other normative legal acts or by agreement of the parties, is considered as an exchange of documents. 5. The right of ownership and other property rights to tangible media containing documented information are established by civil law. Article 11.1. Exchange of information in the form of electronic documents in the exercise of the powers of state authorities and local self-government bodies 1. State authorities, local self-government bodies, as well as organizations that exercise separate public powers in accordance with federal laws, are required to provide citizens of their choice within their powers ( individuals) and organizations information in the form of electronic documents signed enhanced qualified electronic signature, and (or) paper documents, unless otherwise provided for by federal laws or other regulatory legal acts of the Russian Federation governing legal relations in the established field of activity. 2. The information necessary for the exercise of the powers of state authorities and local governments, organizations that exercise separate public powers in accordance with federal laws, may be submitted by citizens (individuals) and organizations to government bodies, local governments, organizations, exercising in accordance with federal laws separate public powers, in the form of electronic documents signed electronic signatureunless otherwise established by federal laws governing legal relations in the established field of activity. 3. Requirements to electronic interaction of citizens (individuals) and organizations with state authorities, local governments, with organizations exercising separate public powers in accordance with federal laws, and the procedure for such interaction is established by the Government of the Russian Federation in accordance with Federal law dated April 6, 2011 N 63-ФЗ "On electronic signature". | Legal regulation of relations in the field of the use of electronic digital signatures is carried out in accordance with this Federal Law, Civil Code Russian Federation, Federal law "On information, informatization and information protection", Federal law "On Communications", other federal laws and other normative legal acts of the Russian Federation adopted in accordance with them, and also carried out by agreement of the parties. |
What is the essence of the changes over 20 years?
Literature for the task:
Federal Law of the Russian Federation of July 27, 2006 N 149-ФЗ “On Information, Information Technologies and Information Protection” // Russian Newspaper. July 29, 2006 No. 4131.
4. The law of the Russian Federation "On electronic digital signature" dated 10.01.2002 N 1-ФЗ // Collection of legislation of the Russian Federation. 2002. N 2. Art. 127.
GOST 6.10.4-84. Unified documentation systems. Giving legal force to documents on a machine medium and a machinegram created by computer technology.
GOST R 51141-98. Paperwork and archiving. Terms and Definitions.
Afanasyeva L.P. Informatization of archiving: organization and management // Record Keeping. 2004. No. 2.
Kukarina Yu.M. Electronic documents in the legislative acts of the CIS countries // Domestic archives. 2002. No. 1. S. 41-44.
In the last decade, great attention has been paid to the introduction of electronic document management in the state authorities of the Russian Federation. This was confirmed, in particular, by the adoption of the federal target program “Electronic Russia (2002-2010)” 6, which implied the implementation of pilot projects on the transition to electronic document management in government and local governments, the development of telecommunications infrastructure and connection to computer networks public authorities, local governments and budget organizations, the development of electronic commerce and support the market for goods (services). The state plans to create legal, organizational and technological conditions for the development of democracy by realizing the rights of citizens to freely search, receive, transmit, produce and disseminate information. Today, the formation of electronic government and, as a consequence, the introduction of electronic document management are one of the most important priorities in the domestic policy of the state.
From the point of view of legal regulation of electronic document management, the following documents belong to the main regulatory legal acts:
Federal Law of July 27, 2006 No. 149-FZ “On Information, Information Technologies and the Protection of Information”. This law defines such concepts as “electronic message” and “electronic document”, and also establishes the legal status of the exchange of electronic messages and electronic documents.
Federal Law of July 27, 2010 No. 210-ФЗ “On the Organization of the Provision of State and Municipal Services”. The law establishes the possibility of applying for state and municipal services in electronic form and the requirements for organizing the provision of state and municipal services in electronic form, as well as the general conditions for the use of electronic signatures in the provision of state and municipal services. It is envisaged that the list of services provided in electronic form, the types of electronic signatures used in the provision of state and municipal services, and the rules for their use are determined by acts of the Government of Russia.
Civil Code of the Russian Federation of November 30, 1994 No. 51-FZ. Part 1. The provisions of the code provide for the possibility of concluding an agreement by the exchange of electronic documents (Article 434).
Labor Code of the Russian Federation dated December 30, 2001 No. 197-FZ. Establishes the procedure for concluding an agreement in electronic form with a remote employee and the features of electronic document management between the remote employee and the employer.
Decree of the Government of the Russian Federation of September 22, 2009 No. 754 “On approval of the Regulation on the system of interdepartmental electronic document management”. The resolution approved the provision on electronic document management of federal executive bodies, executive bodies of the constituent entities of the Russian Federation and other state bodies, as well as state extra-budgetary funds.
The functioning of electronic document management raises a lot of specific legal problems. This mainly concerns the identification of an electronic document, the possibility of using electronic documents in court as evidence, the distribution of risks that may arise during the functioning of electronic document systems, etc. It should be noted that the existing legislation already contains certain prerequisites for the development of relevant legal norms, however, this issue still requires serious study.
CHAPTER 1. THE CONCEPT OF ELECTRONIC DOCUMENT AND ITS LEGAL
§1. The document and its legal features.
§2. The historical aspect of the legal regime of an electronic document.
§4. Material information carrier of an electronic document.
§5 Details identifying an electronic document.
CHAPTER 2. LEGAL REGULATION OF THE USE OF THE ELECTRONIC DIGITAL SIGNATURE AS A DETAIL
ELECTRONIC DOCUMENT.
§1. The concept of electronic digital signature.
§2. The legal status of the owner of the key certificate of electronic digital signature and the value of key certification.
§3. Means of electronic digital signature.
§4. Legal status of the certification center.
CHAPTER 3. INFORMATION SYSTEMS OF ELECTRONIC DOCUMENT CIRCULATION IN ENTREPRENEURIAL ACTIVITY
AND THEIR LEGAL REGULATION.
§1. The concept of electronic document management and legal methods for its regulation.
§2. The imperative method of legal regulation of electronic document management.
§3. The dispositive method of legal regulation of electronic document management.
§4. A mixed method of legal regulation of electronic document management.
Recommended Thesis List
Legal regime of an electronic document: Issues of using an electronic digital signature 2006, candidate of legal sciences Halikov, Ravshan Odylovich
Administrative and legal basis for the activities of certification centers of electronic digital signatures in the Russian Federation 2010, candidate of legal sciences Suvorov, Andrei Alexandrovich
Legislative regulation of the use of digital signatures in countries with developed market economies: comparative legal analysis 2011, candidate of legal sciences Shchegoleva, Svetlana Vyacheslavovna
Formation and development of the concept of "electronic document" in foreign and Russian legislation 2004, candidate of historical sciences Kukarina, Julia Mikhailovna
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Introduction of the dissertation (part of the abstract) on the topic “Legal regulation of the use of electronic documents in business”
Relevance of the research topic. The development and widespread use of information and communication technologies is a global trend in world development and the scientific and technological revolution of recent decades.
The transition to electronic tools and technologies began in those areas and segments of the economy in which the speed and accuracy of the collection, processing and transmission of information are the main factors of entrepreneurial success. Therefore, first of all, electronic document management came to the banking sector, and then its advantages were appreciated by business entities working in other areas of entrepreneurial activity1. Today, business entities interact through electronic document management, both among themselves and with end users and authorities.
It should be noted that the use of electronic documents began even before the advent of the global Internet, but its appearance was a powerful impetus to the development of paperless technologies in entrepreneurial activity.
Currently, business entities use electronic document management, based both on the information environment of the Internet, and on other electronic forms, electronic means. Moreover, from the point of view of legal regulation, the means of communication used do not affect the legal significance of the generated electronic documents.
1 Tedeev A.A. Electronic Banking Services: A Tutorial. (A full course in three days) - M .: Eksmo Publishing House, 2005. - S. 140-141
New technical realities have set the right to regulate the legal aspects of the use of electronic documents. The active introduction of electronic document management in business has necessitated: determining the legal regime of an electronic document, the conditions for its equivalence to a paper document; fixing requirements for the identifying details of an electronic document, including an electronic digital signature (hereinafter - EDS), and the procedure for their application; establishing methods for legal regulation of electronic document management.
The world community has begun to adapt existing legislation to new conditions. Thus, the United Nations Commission on International Trade Law (UNCITRAL) has developed a number of model regulations aimed at harmonizing the legal norms governing the use of electronic documents2.
In 1990, the International Chamber of Commerce approved a new edition of the International Rules for the Interpretation of Trade Terms “INCOTERMS”. “The main reason for the revision of INCOTERMS was called the need to adapt them to the increasing use of computer communications, including to computerized workflow ”3.
2 “The Model Law on Electronic Commerce, adopted by the United Nations Commission on International Trade Law” (UNCITRAL), and the “Adoption Guide”, approved by the UN General Assembly Resolution of December 16, 1996 A / 51/628 // Published in the official United Nations publication (New York, 1997)
UNCITRAL Legal Guide for Electronic Transfer of Funds (prepared by the secretariat of the United Nations Commission on International Trade Law, New York, 1987) // The text of the guide was not officially published
3 Tkachev A.B. The legal status of computer documents: basic characteristics. - M .: Gorodets-Izdat LLC, 2000. - S.Z.
To date, the great importance of the civilized development of the electronic segment of Russian law and the economy also does not raise any doubts.
So, the Federal Target Program “Electronic Russia (2002 - 2010)” 4 provides for the implementation of measures aimed at:
Improving the legislation and the system of state regulation in the field of information and communication technologies, which includes the creation of a legal framework for solving problems associated with the production and distribution of documents in electronic digital form. Moreover, in accordance with the provisions of the Federal Target Program, the legal regulation of information and communication technologies should be based on an integrated approach to improving the legislation of the Russian Federation and its harmonization with the provisions of international conventions and the laws of the Member States of the European Union;
Improving the interaction of public authorities and local governments with business entities and the introduction of information and communication technologies in the real sector of the economy. Activities in this area include the digitalization of most of the workflow between business entities, government and local governments.
So, the task of reforming Russian legislation in connection with the transition to the active use of electronic document management has been set at the state level. However, since the approval of the Federal Target Program “Electronic Russia (2002 - 2010)”
4 Federal Target Program “Electronic Russia (2002 - 2010)” (approved by Decree of the Government of the Russian Federation No. 65 of January 28, 2002) // Meeting of the legislation of the Russian Federation of February 4, 2002. - No. 5. - Art. 531 To date, the state of the regulatory framework governing the use of an electronic document has not changed.
Despite the fact that in the Federal Law of January 10, 2002 No. 1-ФЗ “On Electronic Digital Signature” 5 an attempt was made to create a legal framework for legally significant electronic document management, it can be stated that this law could not solve all the issues set before it tasks. In particular, the legal regime of the electronic document remains uncertain, the problems associated with the use of electronic analogues of a handwritten signature have not been resolved. The situation is further complicated by the fact that not all developments of foreign lawmakers are applicable in Russian conditions.
The relevance of the study and the need for a comprehensive system analysis is confirmed by active legislative activity. Since the beginning of 2005 a number of bills6 were introduced into the State Duma of the Russian Federation6 that directly affect the use of electronic documents in entrepreneurial activity, which indicates a lack of legal regulation of relations arising in this area.
The degree of development of the research topic. The use of an electronic document in entrepreneurial activities to date has not been the subject of a comprehensive scientific study. Theoretical works affecting features of the legal regime
6 Draft new edition of the federal law “On electronic digital signature” (Draft B.JI. Gorbachev and V.A. Yazev No. 1323742-4)
Draft Federal Law On Electronic Commerce (Draft B.JI. Gorbachev and V. A. Yazev No. 132754-4)
Draft federal law “On electronic commerce” (Draft K.V. Vetrova, V.Ya. Komisarova, A.N. Khairullin No. 136018-4) Draft federal law “On electronic commerce” (Draft V.Y. Komisarov No. 159016- 4)
The draft federal law “On Electronic Signatures” (Draft C.B. Zhitinkin No. 159631-4) // http.7 / www.duma.gov.ru of an electronic document, the problems of giving it legal force, as a rule, are small articles in legal journals.
The object of the study is the legal relationship arising from the use of an electronic document in entrepreneurial activity.
The subject of the study is the methods of legal regulation of the use of an electronic document in entrepreneurial activity.
The purpose and objectives of the study. The purpose of the dissertation research is a comprehensive study of the status and problems of legal regulation of the use of electronic documents in business and the development of recommendations for improving legislation.
To achieve this goal, it was necessary to solve the following tasks:
Identification and assessment of normative and doctrinal definitions of the concepts of “document”, “electronic document”;
Consideration of the features of a traditional document (paper document) and investigation of the issue of compliance of the electronic document with the identified features
Definition of the concept of “electronic document management” and its significance for business entities; research of electronic document management systems, their classification and establishment of legal regulation methods;
Analysis of normative and doctrinal definitions of the concepts “analogue of a handwritten signature”, “electronic signature”, “digital signature”, “electronic digital signature”, their correlation and the function of the details of an electronic document;
Investigation of the relationship between the electronic analogue of the handwritten signature used and the method of legal regulation of the electronic document management system; studying the problems of legal regulation of the use of electronic digital signatures in an electronic document;
Justification of proposals to improve the legislation of the Russian Federation in the field of electronic documents circulation;
Methodology and research technique. In the research process, along with the use of general scientific methods (historical, inductive and deductive analysis, synthesis), private scientific research methods were also used: system analysis, technical and legal, comparative legal and formal logical analysis, formal dogmatic (normative) analysis.
Theoretical and legal basis of the study. Forming his views and conclusions on certain issues of this study, the author used works in the fields of general and special branch legal sciences, and also relied on the theoretical positions of scientists, in particular, such as: B.C. Belykh, A.P. Vershinin, V.Ya. Dorokhov, V.O. Kalyatin, A.A. Kosovets, C. B. Manshin, S.I. Semiletov, N.I. Solovyanenko, A.B. Tkachev, M.V. Sharaputo, NM. Yakovlev.
For a deeper and more detailed analysis of the legal nature of the categories “electronic document”, “electronic signature” and “electronic digital signature”, the author studied the work of V.A. Gadasina and V.A. Konyavsky, S. Burnet and S. Payne, concerning the technical and technological aspects of electronic document management and related legal features.
In the course of work on the second chapter of this study, devoted to the legal regulation of the use of electronic digital signatures, the author used the works of O. Efremkina, V.L. Kopylova, K. B. Leontiev, A.G. Sergo, P.S. Simonovich.
To reveal certain aspects of the chosen topic, the dissertation researcher studied the works of C.B. Anureeva, S.A. Babkina, I.A. Spiranova, A.A. Tedeeva, A.B. Shamraeva and others, affecting the use of electronic documents in certain areas of entrepreneurial activity, including in banking, while ensuring the functioning of payment systems, in electronic commerce, with electronic interaction of business entities with government authorities.
The empirical basis of the study is the practice of business entities providing electronic document management, as well as taking an active part in it, including Takscom LLC, S.W.F.T. SCRL, CJSC Corporate Service Center (BeSafe corporate information system).
The scientific novelty of the dissertation research is that it was the first attempt to comprehensively analyze electronic document management systems operating in the field of entrepreneurial activity, as well as their classification according to the method of legal regulation and contractual interaction schemes of participants.
An assessment of the legal regulation of relations arising in connection with the implementation of electronic document management, in terms of its completeness and sufficiency. The legal methods of ensuring the legal significance of electronic documents, including the features of using various electronic analogues of a handwritten signature, are analyzed.
The proposals on improving the legislation governing the use of electronic digital signatures in electronic documents are justified.
In the dissertation, new theoretical principles, practical conclusions and proposals that are made on defense are formulated and justified:
1. The concept of "electronic document" is not equivalent to the concept of "electronic data message" ("electronic message"). The latter cannot have independent legal force in connection with which, the outlined tendency of transition to the use of the concept of “electronic data message” (“electronic message”) is unreasonable.
2. As an attribute identifying the information recorded in an electronic document, any electronic analogue of a handwritten signature agreed by the parties may be used if the current legislation does not establish more stringent requirements for such an analogue, in particular, the requirement of authentication of an electronic document.
3. Electronic document management information system - a system for preparing, sending, receiving, storing or otherwise processing electronic documents.
The definition of “electronic document management information system” must be fixed in the norms of the Federal Law of January 10, 2002. No. 1-ФЗ “On electronic digital signature”.
4. The organizer of the electronic document management information system is an individual or legal entity or authority that defines the goals of creating an information system, its functions, functioning conditions, including technical ones.
It is advisable to supplement the norms of the Federal Law of January 10, 2002. No. 1-ФЗ “On electronic digital signature” with the above definition. At the same time, exclude from the text of the law references to the owner of the information system.
5. To establish in the norms of the Federal Law of January 10, 2002 No. 1-ФЗ “On electronic digital signature” “presumption of authorship”: an electronic digital signature in an electronic document is recognized as created by the certificate holder of its public key, unless the holder of the signature key certificate proves the opposite.
6. To fix in the norms of the Federal Law of January 10, 2002. No. 1-ФЗ “On electronic digital signature”, a requirement to ensure the fixation of the date and exact time of certification of an electronic document with an electronic digital signature, as well as the date and exact time of receipt of an electronic document certified by an electronic digital signature, unless another procedure for determining the time of signing and receiving an electronic document is agreed upon by the participants electronic document management.
7. Determine by the norms of the Federal Law of January 10, 2002. No. 1-ФЗ “On electronic digital signature”, the maximum period during which the recipient of an electronic document is required to verify the electronic digital signature, unless another period and procedure for its calculation has been agreed upon by the participants in electronic document management.
8. To supplement the Federal Law of January 10, 2002. No. 1-ФЗ “On electronic digital signature”, a norm that provides legal entities with the right to suspend (revoke) certificates of keys for electronic digital signature of its employees, used in the performance of their official duties.
9. Introduce into the Federal Law of January 10, 2002. No. 1-ФЗ “On electronic digital signature”, the prohibition of delegation by certification authorities of authority and their direct obligation to directly verify the conformity of the data set forth in the application for the production of a certificate of an electronic digital signature key with the submitted documents.
10. Amend the regulatory definition of “confirmation of the authenticity of an electronic digital signature in an electronic document” 7, setting this definition as follows: confirmation of the authenticity of an electronic digital signature in an electronic document is a positive result of verification by an electronic digital signature using an electronic digital signature membership key certificate in an electronic document to the owner of the signature key certificate and the absence of distortion in the signed electronic qi signature by electronic document. "
The proposed definition does not mention a certified digital signature tool.
11. To fix in the norms of the Federal Law of January 10, 2002. No. 1-ФЗ “On electronic digital signature” is a requirement for mandatory certification of electronic digital signature tools only for information systems in which federal government bodies, government bodies of the constituent entities of the Russian Federation and local governments participate.
In other cases, the issue of used electronic digital signature means should be decided on a contractual basis.
12. To oblige the norms of the Federal Law of January 10, 2002. No. 1-ФЗ “On electronic digital signature” of the organizer of the electronic document management information system (its participants) to notify counterparties about the use of uncertified electronic digital signature means, as well as to compensate for losses incurred due to the use of uncertified electronic digital signature means in the absence of such a notification. n. Art. 3 of the Federal Law of January 10, 2002 No. 1-ФЗ On Electronic Digital Signatures // Rossiyskaya Gazeta of January 12, 2002. - No. 6
At the same time, delete the norm of the Federal Law of January 10, 2002. No. 1-ФЗ “On electronic digital signature”, which establishes the possibility of reimbursing the creators and distributors of uncertified electronic digital signature means for damages incurred in connection with the creation of electronic digital signature keys using these means.
The theoretical significance of the dissertation is that its main provisions and conclusions can be used for further scientific research of the legal regulation of the use of electronic documents in entrepreneurial activity.
The practical significance of the dissertation and the testing of research results
The practical value of the dissertation research is that the conclusions and generalizations obtained can be used to systematize and improve the norms of the current legislation of the Russian Federation on the use of electronic documents.
The dissertation materials can be used in teaching business and civil law courses.
The structure of the dissertation research is determined by the goal and the tasks arising from it. It consists of an introduction, three chapters, conclusion and bibliography.
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CONCLUSION
The pace of informatization of Russian society is one of the highest in the world. Already today, the majority of the turnover of documents of business entities is carried out electronically. In this regard, the creation of legal conditions for legally significant electronic document management is of particular importance.
In this work, the author conducted a comprehensive study of the status and problems of legal regulation of the use of an electronic document in entrepreneurial activity, as a result of which a number of conclusions were made and substantiated, including the need to amend the current legislation.
Considering the legal regime of an electronic document, the author revealed the conformity of its legal features with the document features in the traditional sense enshrined in the current legislation, which led to the conclusion that the electronic document is a document at a new technical level, and therefore it should be distributed legal regime of the document, in general.
In the study of the legal features of an electronic document, the author disagrees with the emerging tendency to use the concept of “electronic data message” (“electronic message”), which corresponds to the concept of “information”, and, therefore, is one of the components of an electronic document. In addition, the author proposed to consolidate in the norms of law an expanded definition of the concept “material carrier of documented information (document)”, which includes physical fields. Considering electronic details identifying information as a legal sign of an electronic document, the author came to the conclusion that any electronic analogs of a handwritten signature can be considered as such, if the agreement of the participants in electronic document management or the rule of law does not establish special requirements for such analogues, for example, the requirement to guarantee immutability and integrity of an electronic document.
The author pays special attention to the study of the legal regulation of the use of such an electronic analogue of a handwritten signature as an electronic digital signature. This is due to an attempt in legislative norms to enshrine the equality of handwritten and electronic digital signatures, subject to the requirements of the law. The result of the study was the conclusion about the imperfection of the Federal Law "On electronic digital signature", the need for their detailing in by-laws, as well as the need to make a number of changes to it.
The author believes that it is fundamentally important for the stabilization and security of electronic document management, on the one hand, there is a direct consolidation in the norms of the right of presumption of authorship, according to which an electronic digital signature in an electronic document is recognized as created by the certificate holder of its public key, if the holder of the signature key certificate does not prove otherwise, on the other hand, the establishment of the obligation of certification centers to directly verify the conformity of the data set forth in the application for manufacture ix certificate of electronic digital signature keys provided documents.
In addition, the author proposes to fix the requirement of fixing the date and time of signing the electronic document of the electronic digital signature and the receipt of this document by the addressee, as well as to establish the maximum period during which the addressee is required to verify the electronic digital signature.
According to the author, of great importance for electronic document management in entrepreneurial activity is the provision to legal entities of the right to suspend (revoke) key certificates of electronic digital signature of its employees. In addition, the author offers to provide participants with electronic document management the right to choose electronic digital signature tools on their own, and to preserve the mandatory use of certified electronic digital signature tools only for electronic document management systems with the participation of federal government bodies, state authorities of the constituent entities of the Russian Federation and local governments. At the same time, participants in the electronic document management system using uncertified digital signature tools should be notified about this.
In the dissertation research, the author formulated definitions of the concepts “electronic document management”, “electronic document management system”, considered examples of the organization of information systems of electronic document management, and also proposed their classification.
References of thesis research candidate of Legal Sciences Shishaeva, Elena Yuryevna, 2005
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According to Russian experts in the field of law, the first attempts to develop a legal framework for electronic documents in our country have been made since the mid-70s, when a number of departmental acts on requirements for intrasectoral machine documents were adopted.
On April 20, 1981, the State Committee on Science and Technology of the USSR, by Decree No. 100, approved “Temporary industry-wide guidelines on giving legal force to documents created by computer technology”. This act stated that “... a document on a machine medium is used without conversion to a human-readable (visual) form when transmitting information to enterprises, organizations and institutions or for the exchange of information between them” (paragraph 3). When enterprises entered into an agreement on the exchange of documents on machine media, they were instructed to establish additional details that should be reflected on human-readable copies of magnetic documents (paragraph 22). Thus, an attempt was made to regulate the procedure for working with a new type of documents by creating various regulations in certain sectors of the company.
But the first solution to this problem at a different national level can be considered the adoption by the USSR State Committee for Standardization GOST 6.10.4-84 "USD. Giving legal force to documents on a machine medium and a machinegram created by computer technology. Key Points ”October 9, 1984. This State Standard was subsequently the main regulatory and methodological document governing the use of these documents in various fields. The considered normative act has established mandatory requirements for the composition and content of the details that give legal force to documents on a machine carrier and a machinegram created by computer technology, as well as the procedure for amending these documents.
According to Article 2.1, a document on a machine medium must contain the following details: name of the creator organization, location of the creator organization or mailing address, name of the document, date of manufacture of the document, code of the person who approved the document. The last requisite in accordance with Article 2.8 should be written down as follows: identification code and position, surname of the person responsible for the correctness of the production of the document on a machine carrier or machine copy, or of the person who approved such a document. The ownership of the code for a specific person must be registered with the organization-creator. It is also necessary to have hardware and software tools and organizational conditions that exclude the possibility of using other people's codes. Thus, by analogy with the signing of traditional documents on paper for documents on machine media, it was recommended to use a special code of the creator of the document or the person in charge.
In September 1986, the "Methodological guidelines for the implementation and application of GOST 6.10.4-84" USD. Giving legal force to documents on a machine medium and a machinegram created by computer technology. The main provisions "(RD 50-613-86)", which established the procedure for the implementation and application of GOST in ministries, departments and their subordinate enterprises, organizations and institutions.
Chapter 2, “Requirements for original documents,” defines that documents on machine media include documents on magnetic machine media (magnetic tapes and disks, flexible magnetic disks) and documents on paper machine media (punched tapes, punched cards) (Section 2.1). Creation of documents on machine media and machinegrams can be based on data recorded in the source (primary) documents received through communication channels from automatic recording devices, in the process of automated problem solving or when transferring from one machine medium to another.
In the 1991 adopted “State system of documentation support. The main provisions. General requirements for documents and documentation support services "we meet definitions of terms -" machine-readable document - a document suitable for automatic reading of the information contained in it, the main carriers of which are punch cards, punched tapes and magnetic tapes "and" machine-written document on paper, created by means of computer technology in writing and designed in the prescribed manner ”(chapter 2.3.3).
In 1992, another notable normative-methodical document appeared, “Typical Instructions for Clerical Work in the Ministries and Departments of the Russian Federation,” which also contains a definition of the term “machinegram - a document created using computer technology and executed on the basis of the uniform rules set forth in this instructions, and can be used on an equal footing with typewritten documents. "
In addition, article 3.6 “Documentation Automation” speaks of the permissibility of using automated technologies in documenting the activities of relevant organizations. Thus, we see that the normative and methodological acts gradually consolidate the possibility of using documents on computer media and machine-programs in the activities of a certain circle of organizations and institutions, as well as some general definitions.
And only in May 1994, two State standards were adopted - GOST R 34.10-94 “Information technology. Cryptographic information security. Procedures for the generation and verification of electronic digital signatures based on a cryptographic algorithm ”and GOST R 34.11-94“ Information technology. Cryptographic information security. Caching function ”, which secured a certain technology for creating electronic digital signatures. The first of the above State Standards establishes procedures for generating and verifying the electronic digital signature of messages (documents) transmitted to unprotected public telecommunication channels in information processing systems for various purposes based on an asymmetric cryptographic algorithm using the caching function. The introduction of an electronic digital signature system based on this standard provides protection of transmitted messages from forgery, distortion and unequivocally allows evidence to confirm the signature of the person who signed the message.
The electronic digital signature system is based on cryptographic data protection methods using the cache function. The algorithm and procedure for calculating the cache function are described in GOST R 34.11-94 “Information technology. Cryptographic information security. Caching Function. " The caching function consists in matching an arbitrary data set in the form of a sequence of binary characters and its image of a fixed small length, which allows you to use this function in the electronic digital signature procedure to reduce the time of signature creation and verification.
Following the adoption of state standards of the Russian Federation, there was a need to regulate the use of documents in electronic form as judicial evidence. In this regard, a letter was issued by the Supreme Arbitration Court of the Russian Federation dated August 19, 1994 No. C1-7 / OP-587 “On Certain Recommendations Adopted at Meetings on Judicial Arbitration Practice”, which confirmed the possibility of accepting documents made and signed by an electronic digital signature, if the agreement has a procedure for reconciling disagreements and the procedure for proving the authenticity of the agreement and the reliability of signatures. The letter of the Supreme Arbitration Court of the Russian Federation dated June 7, 1995 No. C1-7 / 03-316 established that the legal force of a document stored, processed and transmitted using automated information and telecommunication systems can be confirmed by electronic digital signature. The legal force of an electronic digital signature is recognized if there is software and hardware in the automated information system that ensures the identification of the signature, and subject to the established regime for their use.
As for the issues of legislative regulation of Electronic documents and electronic signatures, the first of the laws should be considered the Federal Law “On Information, Informatization and Information Protection”, adopted in 1995. This legal act defines the legal regime for documenting information, the ownership of individual documents and individual arrays of documents in information systems, the categories of information by the level of access to it, and the procedure for legal protection of information.
In article 2 of the law under consideration, basic terms and definitions are proposed. Of greatest interest are the interpretations of the terms “documented information (document) - information recorded on a physical medium with details that allow it to be identified” and “information resources - individual documents and individual arrays of documents, documents and arrays of documents in information systems (libraries, archives, collections, data banks, other information systems). ”
Article 5, “Documentation of Information,” addresses the legal validity of documents obtained from automated information systems. In accordance with paragraph 2 of Art. 5, a document obtained from an automated information system gains legal force after it is signed by an official in the manner established by the legislation of the Russian Federation. The legal force of a document stored, processed and transmitted using automated information and telecommunication systems can be confirmed by electronic digital signature. The legal force of an electronic digital signature is recognized if there is software and hardware in the automated system that ensures the identification of the signature and the established regime for their use is observed (Clause 3, Article 5).
Thus, an electronic digital signature becomes a mandatory requisite of a document in an automated information system and allows you to implement a mechanism for verifying the accuracy of the information contained in such a document.
According to paragraph 4 of Art. 5 of the law under consideration, the right to certify the identity of an electronic digital signature is based on a license. The procedure for issuing licenses is determined by the legislation of the Russian Federation. Decree of the Government of the Russian Federation of April 11, 2000 No. 326 “On Licensing of Certain Types of Activities” determined that licensing of activities to certify the identity of electronic digital signatures should be carried out by the Federal Agency for Government Communications and Information under the President of the Russian Federation.
The responsibilities of this organization also include certification of encryption tools, including cryptographic means of ensuring the authenticity of information (electronic signature). According to the Decree of the President of the Russian Federation of April 3, 1995 No. 334 “On measures to comply with the law in the field of development, production, sale and operation of encryption tools, as well as the provision of services in the field of information encryption”, it is prohibited to use state bodies and enterprises in information and telecommunication systems encryption tools, including cryptographic means of ensuring the authenticity of information, and secure technical means of storage, processing and transmission of information that are not certified kata of the Federal Agency for Government Communications and Information under the President of the Russian Federation, as well as the placement of state orders for the enterprises, organizations that use these technical and cryptographic means, but do not have the appropriate certificate.
In relation to civil legal relations, the fundamental provisions on the possibility of using electronic documents and electronic signatures are contained in the Civil Code of the Russian Federation. Article 160 lays down the requirements for the writing of transactions. In accordance with paragraph 2 of this article, the use of facsimile reproduction of a signature by means of mechanical or other copying, electronic digital signature or another analogue of a handwritten signature when making transactions is permitted in cases and in the manner prescribed by law, other legal acts or by agreement of the parties.
Thus, civil law allows the use of an electronic digital signature, but does not specify the specified provision, but only establishes that special regulation should be carried out by laws and other legal acts, or by special agreement of the parties.
Article 434 of the Civil Code of the Russian Federation “Form of agreement” stipulates that the agreement may be concluded in any form provided for transactions. In accordance with paragraph 2 of Art. 434, a contract in writing can be concluded by drafting one document signed by the parties, as well as by exchanging documents by post, telegraph, teletype, telephone, electronic and other communications, which can reliably establish that the document comes from the party under the contract.
An important provision is the norm that it is allowed to conclude an agreement by exchanging documents using electronic communications. However, it should be possible to reliably establish that the document is coming from the party under the contract.
With the adoption of the second part of the Civil Code of the Russian Federation, it became possible to use electronic means of payment in settlements. In accordance with Art. 847 para. 3, the agreement may provide for the certification of the right to dispose of the amounts of money in the account, electronic means of payment and other documents using the analogs of a handwritten signature, codes, passwords and other means confirming that the order was given by an authorized person.
In the absence of special legislative norms, the Central Bank of the Russian Federation issued a number of regulatory documents allowing the use of electronic payment documents in practice.
Of course, one of the last State standards for office management and archival affairs - GOST R 51141-98 “Office work and archiving. Terms and definitions ”, which provides a list of basic terms and definitions in these areas, which are mandatory for use in all types of documentation and literature on paperwork and archiving.
Clause 3 of the considered State Standard defines the term “document, documented information”, which is understood as “... information recorded on a physical medium with details that allow it to be identified”. As “a carrier of documented information” is meant “a material object used to consolidate and store speech, sound or visual information on it, including in a transformed form” (paragraph 5).
A document on a machine medium is defined as "... a document created using media and recording methods that provide processing of its information by an electronic computer" (p. 17).
Approval of the “Model Instruction for Office Work in Federal Executive Bodies” on November 8, 2005, which was the new edition of the “Model Instruction for Office Work in Ministries and Departments of the Russian Federation”. The goals of the new Standard Instruction are: to establish general requirements for the functioning of management documentation services, document management activities and organize work with documents in federal executive bodies, as well as improve management documentation and increase its efficiency by unifying the composition and forms of management documents, work technologies with them and ensuring control over the execution of documents.
It is interesting to note that the provisions of the new standard instruction apply to the organization of work with documents regardless of the type of medium, including their preparation, registration, recording and control of execution, carried out using automated (computer) technologies, which can be considered a progressive step in modern society. But the automated document processing technologies used in the federal executive body must meet the requirements of the instructions for the clerical work of this body (Section 1.4, Chapter 1). Thus, in spite of the fact that the term “electronic document” does not appear in the Model Instruction under consideration, it is understood that its provisions aimed at paper documents are also valid for documents in electronic format.
For example, article 6.2 “Organization of document delivery” contains clause 6.2.1 that documents are delivered to federal executive bodies, as a rule, by means of postal, courier and electric communications. Telecommunication channels receive: telegrams (teletype messages), fax messages, telephone messages, e-mail messages (clause 6.2.2).
Of particular interest is article 6.6, “Reception and Processing of Documents Received via E-mail and Facsimile Communications,” which states that “... electronic messages sent by e-mail are executed similarly to documents on paper, if there is a certain specificity in execution process ”(Clause 6.6.2). Further, in paragraph 6.6.3, the process of working with such documents “is carried out through these mailboxes” is regulated.
Thus, the considered provisions of the Standard Instruction made it possible to determine some practical aspects of the use of electronic documents in the practical activities of executive authorities, which was not easy in the absence of an appropriate legislative framework.
Of course, it is impossible to ignore legislative acts and normative documents that establish the order of work in various industries, but one way or another contain rules governing the activities with information on electronic media in sectoral legal relations.
In January 2001, the Decree of the Pension Fund of the Russian Federation “On the introduction of cryptographic information protection and electronic digital signature in the system of the Pension Fund of the Russian Federation” appeared. The Decree contains the Regulation on registration and connection of legal entities and individuals to the electronic document management system of the Pension Fund of the Russian Federation and obliges the relevant organizations to use Verba-O / OW cryptographic information protection means and electronic digital signature to protect information transmitted in electronic form.
Thus, a closed information system is created for the exchange of electronic documents between legal entities, individuals and organizations of the Pension Fund of the Russian Federation.
Article 2 of this Regulation proposes definitions of the terms: “an electronic document is information presented in the form of a set of states of elements of computer technology, other electronic means of processing, storing and transmitting information that can be converted into a form suitable for unambiguous perception by a person and having attributes for document identification "," electronic digital signature - a sequence of characters obtained as a result of cryptographic conversion of the source information, which It allows you to confirm the integrity and permanence of this information, as well as its authorship. "
In the Regulation under review, we see a non-standard definition of the term “electronic document” from the point of view of a specialist document specialist, containing mainly technical aspects, as well as certain requirements for the technology of signing electronic documents, which makes it possible to introduce a new technology for working with documents in the Russian Pension Fund as soon as possible Federation.
The Federal Law “On the Licensing of Certain Types of Activities”, adopted in August 2001, in Article 17 establishes the obligatory nature of licensing the issuance of certificates of electronic digital signature keys, registration of owners of electronic digital signatures, and the provision of services related to the use and authentication of electronic digital signatures.
In addition, licensing is provided for the distribution of encryption (cryptographic) means; on their maintenance and on the provision of services in the field of information encryption.
After several years of discussion of various bills, the decisive step was the signing on January 10, 2002 of the Federal Law “On Electronic Digital Signatures”, which creates the legal basis for the use of electronic documents and electronic digital signatures in various fields of activity.
The purpose of this Federal Law is to ensure the legal conditions for the use of electronic digital signatures in electronic documents, subject to which the electronic digital signature in an electronic document is recognized as equivalent to a handwritten signature in a paper document. The scope of the law in question applies to relations arising from civil transactions and in other cases provided for by the legislation of the Russian Federation, but does not extend to relations arising from the use of other analogues of a handwritten signature. The possibility of applying the provisions of the law to other relations is made dependent on the availability of relevant norms in other legislative acts.
Article 3 of the law in question defines the basic concepts. The term "electronic document" is interpreted in the most general sense - "... a document in which information is presented in electronic digital form." The main feature of this term, experts consider the lack of a rigid binding to a specific material carrier. One and the same document can exist on different media, therefore, such concepts as the original and copy are not applicable to it. All copies of an electronic document that are identical in content can be considered as originals and differ from each other only by the date of creation. And as a copy of an electronic document can only be considered a copy on paper.
To confirm the authenticity of the electronic document, an electronic digital signature is used, which is understood in the law as "... the electronic document requisite, intended to protect this electronic document from forgery, obtained as a result of cryptographic conversion of information using the private key of electronic digital signature and allowing to identify the owner of the signature key certificate , and also establish the absence of distortion of information in an electronic document. " Thus, the creators of Russian law directly indicate that an electronic digital signature can only be created using cryptographic technology. The law does not apply to relations arising from the use of other analogues of a handwritten signature, including electronic ones (ciphers, codes, passwords, and so on).
The most important issue of the legal validity of electronic digital signatures is set forth in article 4, “Conditions for the recognition of the equivalence of electronic digital signatures and handwritten signatures”. According to paragraph 1 of Art. 4, an electronic digital signature in an electronic document is equivalent to a handwritten signature in a paper document, subject to the following conditions: the signature key certificate did not expire at the time of verification or at the time of signing of the electronic document if there is evidence that determines the moment of signing; The authenticity of the electronic digital signature in the electronic document is confirmed; electronic digital signature is used in accordance with the information specified in the signature key certificate.
The considered law for the first time secures at the legislative level the legal institution of certification centers. Chapter 3 is fully devoted to the activities of certification authorities, that is, the creation of a special infrastructure for the use of electronic digital signatures in electronic documents.
Chapter 4 of the law “Features of the use of electronic digital signatures” underlines the possibility of its use in the field of public administration (Article 16). Federal government bodies, government bodies of the constituent entities of the Russian Federation, local governments, as well as organizations involved in document circulation with these bodies use electronic digital signatures of authorized persons of these bodies to sign their electronic documents.
I would like to pay particular attention to article 19, the provisions of which allow the use of an electronic digital signature to certify documents with print when transferring them from paper to electronic. Thus, in the Russian legislation, for the first time, an attempt is made to refuse the requisite “seal” and replace it with a certain type of signature acceptable to the medium, in particular an electronic digital signature, which in accordance with the law already has the properties of two details: “signature” and “seal” ".
Obviously, the adoption of the Federal Law “On Electronic Digital Signatures” made it possible at the legislative level to define the basic concepts, such as “electronic document” and “electronic digital signature”, endowing them with the corresponding legal force, and also to determine the general aspects of the application of the selected electronic technology in practice signing documents. But the practical application of the provisions of the law is impossible without the creation of an appropriate infrastructure of certification centers and an authorized federal body.
The entry into force of the Law on Electronic Digital Signatures has shown the need to amend some existing laws. For example, in article 13 of the Federal Law “On Accounting” adopted by the State Duma on February 23, 1996, clause 6 was added containing the provision that “... if there are technical capabilities and with the consent of users of financial statements, an organization may submit financial statements in electronic form in accordance with the legislation of the Russian Federation. ”
The latest version of the law of November 23, 2009 allows the transfer of financial statements to the user via telecommunication channels. Upon receipt of such reports, the user is obliged to transmit to the organization a receipt for acceptance in electronic form (Article 15, paragraph 5).
In the first edition of the Law “On Accounting”, only the provision that “... primary and consolidated accounting documents can be compiled on paper and computer-based information carriers was enshrined. In this case, the organization was obliged to produce at its own expense copies of such documents in paper form for other participants in business operations and for regulatory authorities ”(Article 9, paragraph 7).
Almost immediately after the adoption of the Federal Law “On electronic digital signature”, which enshrined the concept of “electronic document”, the “Basic rules for the work of organizations archives” were adopted - a regulatory and methodological document that determines the procedure for working with different types of documents in the archives of organizations at the present stage, including already electronic documents.
The rules allow you to create archives of documentation on electronic media and receive electronic documents by the usual archives of organizations that are required to ensure the safety, selection, recording, use, as well as the preparation and transfer of such documents to state storage (paragraph 1.3.4).
Electronic documents can be stored either in the organization’s archive, or in a special unit (computer center, information department, etc.). But the prerequisites for the archival storage of electronic documents are: the availability of software and hardware in the archive for their storage, copying and playback, rewriting in new formats and transmission via communication channels; ensuring access to information of established categories of users, as well as ensuring protection of information from unauthorized access by applying appropriate technical means and legal norms; ensuring the storage of electronic documents, excluding the loss, destruction or distortion of information (Article 4.4.2.5).
An important point is that when preparing electronic documents for archiving, it is necessary to prepare a complete set of supporting documentation, which should include, in addition to traditional, some special items: the name of the document, its creation date, content description, electronic format, physical and logical structure ( for databases, sites, etc.), the volume of the document (Art. 2.3.5).
The deadline for temporary storage of archival documents in the organization is the same for all documents on machine media - five years. An examination of the value of electronic documents is carried out by an expert commission in conjunction with the organization’s documentation on traditional media, but in addition to general criteria, some special criteria should also be taken into account, such as: the cost of a possible transfer of electronic documents to another format, the availability of supporting documentation and relevant electronic equipment.
And electronic documents are carried out at the state and local (organizational) level. It is worth noting that in many ways the problems of developing local documents in the field of application of EDMS and electronic documents are associated with the shortcomings of the current legislation:
● there is no law on an electronic document;
● there is no law on the archival storage of electronic documents;
● there is no federal law on management documentation;
● the conceptual apparatus in the region is not fully formed.
Due to shortcomings and shortcomings at the state level of power, the document management services (DOW), together with the departments of informatization, are themselves forced to develop documents governing the work with electronic documents in the context of the EDMS.
In order to effectively solve the tasks and achieve the goal, legislative acts, normative-methodological documents, special publications, including conference materials in the field of document management, were studied.
Improving the DOW and as a result of this process - the widespread introduction of EDS - becomes unthinkable without the use of electronic documents. In this regard, it should be noted that “legal regulation of issues related to working with electronic documents presupposes, first of all, legal (legislative) consolidation of the concept of“ electronic document ”in regulatory legal acts and the possibility of using electronic documents on a par with traditional documents in various fields of activity. ... The use of electronic documents in various areas of society, in turn, requires legislative support of their legal force, that is, the establishment of the procedure for their certification (composition and methods of registration details), as well as protection from distortion in the electronic exchange process. "
Modern state regulation of electronic document management in Russia includes legislative acts affecting the issues of DOW and normative and methodological documents regulating the modern organization of electronic document management.
Legislative acts of the Russian Federation affecting issues electronic workflow
In accordance with applicable federal legislation, the fundamental law that regulates relations arising from the use of information technologies (including electronic document management systems), as well as ensuring the protection of information, is the Federal Law “On Information, Information Technologies and Information Protection” dated July 27 .2006, No. 149-FZ. Article 11 states that an electronic message signed with an electronic signature or another analogue of a handwritten signature is recognized as an electronic document equivalent to a document signed with a handwritten signature. It is also established that the exchange of electronic messages, each of which is signed by an electronic signature or other similar handwritten signature of the sender of such a message, in the manner established by federal laws, other regulatory legal acts or by agreement of the parties, is considered as an exchange of documents.
The next no less important legislative act in the field of electronic document management is the Federal Law “On Electronic Signature” dated 04.06.2011 No. 63-FZ, which provides the legal conditions for the use of electronic signatures in electronic documents as an analogue of a handwritten signature in a paper document. In other words, the electronic signature as the requisite of an electronic document intended to protect this electronic document from forgery, the identification of the owner of the signature key certificate is used to certify electronic documents, including when using EDMS and ED. This law also defines the concept of an “electronic document” as a document in which information is presented in electronic form. We consider this law in more detail, as well as its differences from the previous law on digital signature, in the next paragraph.
It should also be noted the Federal Law "On Personal Data" dated July 27, 2006 No. 152-FZ. This law regulates relations arising from the processing of personal data, including using automation tools. It is necessary to be guided by the provisions of this law in the organization, first of all, when working with documents on personnel.
“Issues of working with electronic documents are also addressed in regulatory legal acts devoted to certain subject areas of legal regulation: civil, administrative, criminal, criminal procedure, labor, tax and other legislation of the Russian Federation.”
The order of the Federal Security Service of the Russian Federation “On approval of the requirements for the form of a qualified certificate of an electronic signature verification key” dated December 27, 2011 No. 795 establishes requirements for the totality and arrangement of fields for a qualified electronic signature certificate.
Order of the Ministry of Finance of the Russian Federation of April 25, 2011 No. 50n “On approval of the Procedure for issuing and receiving invoices in electronic form via telecommunication channels using electronic digital signatures” establishes the procedures for interaction of participants in electronic document management within the framework of issuing and receiving invoices in electronic form via telecommunication channels with the use of electronic signatures.
Civil Code of the Russian Federation (Civil Code). This law stipulates that the document is the basis of civil relations and contains fundamental concepts such as “transaction” and “contract”. The possibility of signing documents by electronic signature (Clause 2 of Article 160) and exchanging documents by electronic communication (Clause 2 of Article 434) is fixed.
The Code of the Russian Federation on administrative offenses of the Russian Federation in paragraph 2 of Art. 26.7 contains a provision that documents may contain information recorded both in writing and in another form. Documents may include materials for photography and filming, sound and video recordings, information databases and data banks, and other storage media.
The Criminal Code of the Russian Federation provides for in Art. 272-274 liability for unauthorized access to information; creation, use and distribution of malware for personal computers; violation of the rules of operation of equipment, computer systems or their networks.
Arbitration Procedure Code of the Russian Federation (in Article 75), Code of Criminal Procedure (v. 74) Code of Civil Procedure of the Russian Federation (in Article 71) contain provisions allowing to consider electronic documents as material evidence, and the presence of an electronic digital signature is a prerequisite for certifying such documents.
The industry codes also contain provisions for working with electronic documents in their respective fields of activity. In particular, the Tax Code of the Russian Federation in Art. 80 contains permission to file tax returns electronically. The Customs Code of the Russian Federation in paragraph 8 of article 63 also stipulates that the documents necessary for customs clearance can be submitted in electronic form. The Labor Code of the Russian Federation in Chapter 49.1 provides for the interaction of a remote worker or a person applying for remote work and the employer through the exchange of electronic documents, enhanced qualified electronic signatures of a remote worker are used (these changes were made to the Labor Code of the Russian Federation by the Federal Law No. 60 dated 04/05/2013 d. "On amendments to certain legislative acts of the Russian Federation").
Federal Law "On Accounting" dated December 6, 2011 No. 402-FZ.The law establishes uniform accounting requirements. In Art. 9 indicates the mandatory details of the primary accounting document, as well as general procedures associated with it, such as signing and correction. In addition, paragraph 5 of Art. 9 permits the preparation of a primary accounting document in electronic form with an electronic signature.
Naturally, the EDMS should support the entire life cycle of documents, including the organization of archival storage of documents with access to electronic archives. In turn, relations arising in the field of organizing the storage, acquisition, accounting and use of archival documents are regulated by the Federal Law “On Archival Affairs in the Russian Federation” dated October 22, 2004 No. 125-FZ. In Art. Section 5 of the law states that the Archival Fund includes archival documents located in the territory of the Russian Federation regardless of the source of their origin, time and method of creation, type of medium, type of ownership and storage location, including electronic and telemetry documents.
When using EDMS and ED, there is an urgent need to ensure information security and protect processed and stored information. In addition to the Federal Law “On Information, Information Technologies and the Protection of Information”, in this connection it is necessary to know the provisions of the Federal Law “On State Secrets” of July 21, 1993 No. 5485-1 and the Federal Law “On Commercial Secrets” of July 29, 2004 No. 98-ФЗ (if the organization creates information that constitutes these types of secrets).
Normative and methodological documents regulating the modern organization electronic workflow
State system of DOW contains recommendations on the execution of management documents, organization of work with documents, including a separate paragraph on the automation of work with documents. In paragraph 4.3, it is stipulated that the automated technology for working with documents is carried out by creating and implementing automated preparation of documents, automated information retrieval systems and solving other problems using personal computers and workstations. At the same time, information and technical compatibility of computer equipment among themselves should be ensured.
Mainly, classifiers of technical, economic and social information can be used by organizations to formulate the corresponding system directories of EDMS and ED. “Currently, in connection with the massive introduction of automated workflow systems, the use of classifiers is gaining key importance. Classification codes can be used as a basis for building workflow automation systems. ”
Album of unified forms of primary accounting documentation for labor accounting and its paymentapproved By Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1. It is used for registration of personnel documentation. When using an electronic document management system and an electronic document, a system directory containing the form data can be created.
To determine the time standards for the main types of work on DOW, including when using automation systems, the following regulatory documents are applied:
Intersectoral integrated standards for the time for work on preschool educationapproved Decree of the Ministry of Labor of the Russian Federation of November 25, 1994, No. 72;
Standards of time for work on automated archival technology and documentation support governing bodies, approved. Decree of the Ministry of Labor of the Russian Federation of September 10, 1993, No. 152;
Norms of time for work on documentation support of managerial structures of federal executive bodies, approved. Decree of the Ministry of Labor dated March 36, 2002 No. 23.
For the federal executive bodies in the organization of internal activities, they were developed (approved by order of the Federal Archive of 12/23/2009 No. 76). These recommendations can be supportive for any organization.
In addition, other recommendations developed by Rosarchive will be useful.
Next, we turn to domestic standards, which must be followed when using EDMS and ED.
GOST R 6.30-2003 “Unified system of organizational and administrative documentation” establishes the composition of the requisites of documents, requirements for registration of requisites of documents; requirements for document forms (including electronic).
International Standards electronic workflow
In Russian legislation there are no uniform standards, requirements for electronic document management systems, which could guide the choice of a system. Moreover, in the West, these standards have long been created and are operating, containing the requirements for such systems. For example, this is the US standard DoD 5015.2-STD (Design Criteria Standard for Electronic Records Management Software Applications), the EU standard MoReq, etc. We will consider the European standard MoReq (Model requirements for the management of electronic records), which, in our opinion, is the most Suitable for our workflow. It was he who could be advised as recommendations when choosing an electronic document management system.
An electronic document management system can be represented as a specialized development package, several separate integrated packages, custom development, or a combination of them. Each organization decides what to choose. The standard does not specify specific requirements for the nature of the system.
The standard can be used:
● developers of electronic document management systems: as recommendations for the development of a software product and its improvement;
● current customers of the system: as a basis for conducting an audit of the use of the system;
● potential customers: as a basis for writing technical specifications;
● specialized educational institutions: as a methodological material for writing training courses in electronic record keeping. 8
In general, the standard is unquestionable recommendations for choosing an electronic document management system, as well as drafting technical specifications. Currently, a huge number of different electronic document management systems are presented on the market, dissimilar in functionality, but similar in description. This complicates the choice of the system. Following the recommendations of MoReq allows the organization to compile its list of requirements for the electronic document management system, meet which criteria, and choose the system that will be most optimal for a particular organization. 8
The application of international standards in the Russian Federation is not mandatory, however, it must be borne in mind that currently the standardization of work with documents is moving to the international level. Therefore, when using EDMS and ED in our country, it is desirable to focus on the provisions and international standards in the field of electronic document management.
Standard ISO 15489 “Information and documentation. Document Management ”was developed by subcommittee No. 11“ Management of archives (documents) ”operating in the structure of technical committee No. 46“ Information and Documentation ”of the International Organization for Standardization. This is “the first international standard for organizing paperwork and document management, containing general requirements and a methodology for managing documents on all types of media and in all formats, as well as procedures for the development and implementation of document management systems”. Moreover, “ISO 15489 standard uses a modern functional approach to the organization of workflow, which allows you to associate regulatory requirements (for example, the status of a“ document ”, storage periods, etc.) with business functions that result in this information material.”
Thus, “in a situation where the regulatory and methodological base of domestic office work has been reduced for various reasons to a minimum, and there is practically no state regulation of documentation management issues, this standard may become a good methodological base for management documentation services in Russian organizations.”
International Standard ISO 23081 “Information and Documentation. Record Management Processes. Metadata for records ”is devoted to clerical metadata in management activities, their types, functions for providing management and clerical processes, as well as metadata management.
Requirements for the storage of documents in archives and libraries are established by ISO 11799: 2003 “Information and documentation. Requirements for the storage of archival and library documentary materials. ”
Conclusion
In conclusion, it should be noted that the requirements for electronic documents may contain legislative and other regulatory legal acts that determine the status of various legal entities or their activities in a particular area. Most often, issues of creating and using electronic documents are decided by departments independently. There are regulations of federal authorities, especially those interested in the quick and accurate transfer of documented information. These are acts of financial authorities, tax, customs, etc.
When using electronic document management systems and ED, one should also take into account legislative acts of the constituent entities of the Russian Federation and legal acts adopted by executive bodies of the constituent entities of the Russian Federation.
Larin M.V. Electronic documents in management: scientific and methodological manual / M.V. Larin, O.N. Ryskov. -VNIIDAD.-M.: 2005.-S.7
Larin M.V. Electronic documents in management: scientific and methodological manual / M.V. Larin, O.N. Ryskov.-VNIIDAD.-M.: 2005.-S.11
Larin M.V. Electronic documents in management: scientific and methodological manual / M.V. Larin, O.N. Ryskov.-VNIIDAD.-M.: 2005.-S.12
Larin M.V. Electronic documents in management: scientific and methodological manual / M.V. Larin, O.N. Ryskov.-VNIIDAD.-M.: 2005.-S.20
Ryskov O.I. Classifiers of documents and information as part of the regulatory framework of AC workflow // Documentation in the information society: Unification and standardization of interdepartmental corporate workflow: Reports and messages at the IX International Scientific and Practical Conference March 05-06, 2003 - Rosarchiv. VNIIDAD.- M., 2003.-S.241
Khramtsovskaya N.A. Normative documents necessary for electronic document management in an organization / N.A. Khramtsovskaya // Documentation in the information society: Unification and standardization of interdepartmental corporate document management: Reports and messages at the IX International Scientific and Practical Conference March 05-06, 2003 - Rosarchive. VNIIDAD.- M., 2003.-S.292-293
Ibid., Ryskov O.I. On the correlation of the provisions of the international standard ISO 15489 and the modern regulatory framework of the Russian preschool educational institution: terminological analysis. - S. 292-293
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