Legal regulation of an electronic document. Legal regulation of document flow in the organization. The concept of an electronic document, its meaning
WORK BOOK OF THE STUDENT
Electronic archives
Sparyshev Victor Alekseevich
Faculty 3 department 311
Extramural
Course __5__________
Group __501__________
Teacher (full name)
Associate professor Afanasyeva L.P.
Moscow 2017
EXPLANATORY NOTE
Student's workbook on special discipline "Electronic archives" in the specialty 080801 " Applied Informatics in the information sphere ”of the 5th year of the faculty of the 3rd correspondence department.
The workbook is intended for the organization of self-study by 5th year students of c / o 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 creating electronic publications... The workbook contains assignments that focus students' attention on key aspects of the thematic sections of the course. Tasks are completed independently on the basis of mastering the recommended literature for each topic.
In accordance with the sections of the discipline program, the RTS consists of seven topics. The completion of each of the sections is evaluated on a five-point system. The first part of the notebook includes 4 tasks (0-20 points). To be admitted to the exam, you must score 11 points. The second part includes 3 topics (0-15 points). To be credited, you need to score 10 points. In general, the completion of the notebook can be estimated from 0 to 35 points. The workbook is handed over to the teacher for verification, after which the mastery of the material is checked during an individual interview. The student is asked questions about the sections of the notebook. To receive credit, in addition to passing the workbook material, you must also visit practical training and completing assignments.
Topic 1. Introduction
1. When studying this topic, you should pay special attention on the conceptual apparatus.
As in the law of the Russian Federation " About information, information technology and information protection»Definitions of concepts are given
informatization
documented information (document)
Compare
What is the difference between these concepts?
Topic 2. Legal regulation of electronic documents.
Based on the analysis of legislation, 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:
Appoint a person who carries out the economic management of information resources or their operational management;
To establish, within the limits of their competence, the mode and rules for processing, protecting information resources and access to them;
Determine the terms of the order 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 27.07.2006 N 152-FZ (as amended on 03.07.2016)
"About personal data"
1. When processing personal data, the operator is obliged to take the necessary legal, organizational and technical measures or ensure their adoption to protect personal data from unauthorized or accidental access to them, destruction, alteration, blocking, copying, provision, dissemination of personal data, as well as from other illegal actions in relation to personal data.
2. Ensuring the security of personal data is achieved, in particular:
1) 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 meet the requirements for the protection of personal data, the fulfillment of which is ensured by the levels of personal data protection established by the Government of the Russian Federation;
3) the use of the procedure for assessing the conformity of information protection means that have passed in the prescribed manner;
4) an assessment 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 the machine carriers of personal data;
6) detection of facts of unauthorized access to personal data and taking measures;
7) restoration of personal data modified or destroyed due to unauthorized access to them;
8) establishing rules for access to personal data processed in the personal data information system, as well as ensuring registration and accounting of all actions performed with personal data in the personal data information system;
9) control over the measures taken to ensure the security of personal data and the level of protection of information systems of personal data.
3.How does the law guarantee the right to access state information resources?
According to the Federal Law of July 27, 2006 N 149-FZ "On Information, Information Technologies and Information Protection"
1. Citizens (individuals) and organizations (legal entities) (hereinafter referred to as organizations) have the right to search for and receive any information in any form and from any source, 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, bodies local government, their officials in the manner prescribed legislation Of the Russian Federation, information directly affecting his rights and freedoms.
3. An organization has the right to receive information from state bodies, local self-government bodies that directly relate to the rights and obligations of this organization, as well as information necessary in connection with interaction with these bodies in the implementation of its statutory activities by this organization.
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 self-government bodies;
2) status information the environment;
3) information on the activities of state bodies and local self-government bodies, as well as on the use of budgetary funds (with the exception of information constituting state or an official secret);
4) information accumulated in open funds 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 self-government bodies are obliged to provide access, including using information and telecommunication networks, including the Internet, to information about their activities in Russian and the state language of the corresponding republic within the Russian Federation in accordance with federal laws, laws of the constituent entities of the Russian Federation and regulatory legal acts of local governments. A person who wants to get access to such information is not obliged to justify the need to obtain it.
6. Decisions and actions (inaction) of state bodies and local self-government bodies, public associations, officials who violate the right to access information can be appealed to a higher authority or higher official or to a court.
7. If, as a result of unlawful denial of access to information, untimely provision of it, provision of deliberately inaccurate information or information that does not correspond to the content of the request, losses have been caused, such losses shall be reimbursed 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 specified by law.
9. The establishment of payment for the provision by a state body or a local self-government body of information about its activities is possible only in the cases and on the conditions that are established federal laws.
4. Compare legal regulation
| legal force of a document on a machine carrier in GOST 6.10.4-84. Unified documentation systems. Legalization of documents on a machine carrier and machine-generated documents computing technology... Basic provisions of GOST dated 01.07.87 N 6.10.4-84 | legal force of the document received from the information system in Article 5 of the Law "On Information, Information Technologies and Information Protection" (2006) | the legal force of an electronic document in the Law "On Electronic Digital Signatures" (2002) |
| 1.1. A document on a machine medium must be recorded, produced and marked up 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, R 50-54-76-88, and the information is coded 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 the registered intersectoral and sectoral classifiers. 1.2. The machine chart must be created taking into account the requirements of state standards for unified documentation systems. 1.3. A document on a machine carrier and a machine chart 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 carrier and a typewriter should be carried out with cover letter designed according to GOST R 6.30-2003... 1.5. A machine-written document and a machine-print become effective after meeting the requirements of this standard and signing the cover letter. 1.6. The recording of a document on a machine medium and the creation of a machine-gram should be carried out on the basis of the data recorded in the original (primary) documents received via 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 a document created on a machine medium is converted into a human-readable form by various technical means of displaying data (displays, printers, etc.). A document on a machine carrier or a typewriter must contain the following mandatory details: the 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 production of the document; the code of the person responsible for the correctness of the production of the document on a machine medium or a machine-written form, or, as a rule, the code of the person who approved the document. | According to Article 11 1. The legislation of the Russian Federation or agreement of the parties may establish requirements for documenting information. 2. In federal executive bodies, information is documented in accordance with the procedure established by the Government of the Russian Federation. The rules of office work and document flow established by other state bodies, local self-government bodies within their competence must comply with the requirements established by the Government of the Russian Federation in terms of office work and document flow for federal executive bodies. 4. For the purpose of concluding civil law contracts or formalizing other legal relations in which persons exchanging electronic messages participate, the exchange of 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 prescribed by federal laws, other regulatory legal acts or agreement of the parties, is considered as an exchange of documents. 5. Ownership and other property rights to tangible media containing documented information are established by civil legislation. Article 11.1. Exchange of information in the form of electronic documents in the exercise of the powers of bodies state power and local self-government bodies 1. State authorities, local self-government bodies, as well as organizations exercising certain public powers in accordance with federal laws, within the limits of their powers, are obliged to provide, at the choice of citizens (individuals) and organizations, information in the form of electronic documents signed reinforced qualified electronic signature, and (or) documents for hard copy, unless a different procedure for providing such information is established by federal laws or other regulatory legal acts of the Russian Federation governing legal relations in the established area of activity. 2. Information necessary for the exercise of the powers of state authorities and local self-government bodies, organizations exercising certain public powers in accordance with federal laws may be submitted by citizens (individuals) and organizations to state authorities, local self-government bodies, organizations, exercising certain public powers in accordance with federal laws, in the form of electronic documents signed electronic signature unless otherwise established by federal laws governing legal relations in the established field of activity. 3. Requirements to the implementation of interaction in electronic form of citizens (individuals) and organizations with state authorities, local authorities, with organizations exercising certain 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-FZ "On electronic signature". | Legal regulation of relations in the field of using electronic digital signatures is carried out in accordance with this Federal Law, The Civil Code Russian Federation, Federal law"On information, informatization and information protection", Federal law"On communications", other federal laws and other regulatory 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 that have taken place over 20 years?
Literature for the assignment:
Federal Law of the Russian Federation of July 27, 2006 N 149-FZ "On information, information technologies and information protection" // Russian newspaper... July 29, 2006 No. 4131.
4. Law of the Russian Federation "On Electronic Digital Signature" dated 10.01.2002 N 1-FZ // Collected 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 machine-graded machine, created by means of computer technology.
GOST R 51141-98. Office work and archiving. Terms and Definitions.
Afanasyeva L.P. Informatization of archival affairs: organization and management // Office work. 2004. No. 2.
Kukarina Yu.M. Electronic documents in the legislative acts of the CIS countries // Domestic archives. 2002. No. 1. P.41-44.
Implementation electronic document management in the state authorities of the Russian Federation in the last decade, much attention has been paid. 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 for the transition to electronic document management in government bodies and local governments, the development of telecommunications infrastructure and connection to computer networks government bodies, local governments and budgetary organizations, the development of an e-commerce system and support for the market for goods (services). The state plans to create legal, organizational and technological conditions for the development of democracy by effectively ensuring the rights of citizens to freely search, receive, transfer, produce and disseminate information. Today, the formation of electronic government and, as a result, the introduction of electronic document management is one of the most important priorities in the internal policy of the state.
From the point of view of legal regulation of electronic document management, the following documents are related to the main regulatory legal acts:
Federal Law of July 27, 2006 No. 149-FZ "On Information, Information Technologies and Information Protection"... This law defines concepts such as "electronic message" and "electronic document", and also establishes the legal status for the exchange of electronic messages and electronic documents.
Federal Law of 27.07.2010 No. 210-FZ "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 requirements for organizing the provision of state and municipal services in electronic form, as well as general conditions for the use of electronic signatures in the provision of state and municipal services. It is envisaged that service list 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 No. 51-FZ dated 30.11.1994. Part 1... The provisions of the code provide for the possibility of concluding an agreement through the exchange of electronic documents (Art. 434).
Labor Code of the Russian Federation of December 30, 2001 No. 197-FZ... Establishes the procedure for concluding an agreement in electronic form with a remote worker and the features of electronic document flow between a remote worker and an employer.
Resolution of the Government of the Russian Federation of September 22, 2009 No. 754 "On approval of the Regulations on the system of interdepartmental electronic document management". The decree approved the regulation 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 gives rise to 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 operation of electronic document systems, etc. It should be noted that certain prerequisites for the development of appropriate legal regulations the current legislation already contains, but this issue still requires serious study.
CHAPTER 1. 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 carrier of information of an electronic document.
§5 Details identifying the electronic document.
CHAPTER 2. LEGAL REGULATION OF THE USE OF ELECTRONIC DIGITAL SIGNATURE AS DETAILS
ELECTRONIC DOCUMENT.
§1. Electronic digital signature concept.
§2. Legal status the owner of the electronic digital signature key certificate and the key certification value.
§3. Means of electronic digital signature.
§4. The legal status of the certification center.
CHAPTER 3. INFORMATION SYSTEMS OF ELECTRONIC DOCUMENT FLOW IN BUSINESS
AND THEIR LEGAL REGULATION.
§1. The concept of electronic document management and legal methods of its regulation.
§2. An imperative method of legal regulation of electronic document management.
§3. Dispositive method of legal regulation of electronic document management.
§4. Mixed method of legal regulation of electronic document management.
Recommended list of dissertations
Legal regime of an electronic document: Issues of using electronic digital signature 2006, candidate of legal sciences Khalikov, Ravshan Odylovich
Administrative and legal framework for the activities of certification centers for electronic digital signature in the Russian Federation 2010, Candidate of Legal Sciences Suvorov, Andrey Alexandrovich
Legislative regulation of the use of digital signatures in countries with developed market economies: a 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, Yulia Mikhailovna
Civil law regulation of the use of electronic digital signatures in the field of electronic data interchange 2001, Candidate of Legal Sciences Manshin, Sergey Viktorovich
Dissertation introduction (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 scientific and technological revolution in recent decades.
The transition to electronic means and technologies began in those areas and segments of the economy in which the speed and accuracy of collecting, processing and transmitting information are the main factors of entrepreneurial success. Therefore, first of all, electronic document circulation came to the banking sector, and then its advantages were appreciated by business entities working in other areas. entrepreneurial activity 1. Today, business entities interact through electronic document management, both among themselves and with end consumers and the authorities.
It should be noted that the use of electronic documents began even before the advent of the global Internet, but its appearance has become a powerful impetus to the development of paperless technologies in business.
Currently, business entities use electronic document management based both on the information environment of the Internet and on other electronic forms, electronic means. At the same time, 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: Tutorial. (Complete course in three days) - Moscow: Eksmo Publishing House, 2005. - S. 140-141
New technical realities have given the law the task of regulating the legal aspects of the use of electronic documents. The active introduction of electronic document management into entrepreneurial activity necessitated: determining the legal regime of an electronic document, the conditions for its equivalence to a paper document; fixing the requirements for the identifying details of an electronic document, including the electronic digital signature (hereinafter referred to as EDS), and the procedure for their application; establishing methods of legal regulation of electronic document management.
The world community has begun to adapt the 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 the need to adapt them to the ever-increasing use of computer communications, incl. to a computerized document flow "3.
2 “Model Law on Electronic Commerce, adopted by the United Nations Commission on International Trade Law” (UNCITRAL), and “Guide to Enactment”, 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 on Electronic Funds Transfers (prepared by the secretariat of the United Nations Commission on International Trade Law, New York, 1987) // The text of the guide has not been officially published
3 Tkachev A.B. Legal status of computer documents: basic characteristics. - M .: LLC "Gorodets-izdat", 2000. - S.Z
Today, the great importance of the civilized development of the electronic segment Russian law and the economy is also beyond doubt.
Thus, the Federal target program"Electronic Russia (2002 - 2010)" 4 provides for the implementation of measures aimed at:
Improvement of legislation and the system of state regulation in the field of information and communication technologies, including the creation of a legal basis 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 legislation 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 provide for the transfer to electronic digital form of most of the document flow carried out between business entities, state authorities 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 the RF Government Decree of January 28, 2002 No. 65) // Collected Legislation of the Russian Federation dated February 4, 2002. - No. 5. -Art. 531 to date, the state of the regulatory framework governing the use of electronic documents has remained practically unchanged.
Despite the fact that in the Federal Law of January 10, 2002 No. 1-FZ "On Electronic Digital Signature" 5 an attempt was made to create a legal basis for legally significant electronic document flow, it can be stated that this law could not solve all the tasks. In particular, the legal regime of an electronic document remains uncertain, the problems associated with the use of electronic analogs of a handwritten signature have not been resolved. The situation is further complicated by the fact that not all developments of foreign legislators 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 to the State Duma of the Russian Federation6 directly affecting the use of electronic documents in business, which indicates insufficient legal regulation of relations arising in this area.
The degree of elaboration of the research topic. Until now, the use of an electronic document in business has not been the subject of a comprehensive scientific study. Theoretical works affecting the features of the legal regime
6 Draft of the new edition of the federal law "On electronic digital signature" (Draft B.JI. Gorbachev and V.A. Yazev No. 132742-4)
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. Vetrov, V.Ya. Komisarov, A.N. Khairullin No. 136018-4) Draft federal law "On electronic documents" (Draft V. Ya. Komisarov No. 159016- 4)
The draft federal law "On electronic signature" (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 research is the legal relationship arising from the use of an electronic document in business.
The subject of the research is the methods of legal regulation of the use of electronic documents in business.
The purpose and objectives of the study. The purpose of the dissertation research is a comprehensive study of the state and problems of legal regulation of the use of an electronic document 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 "document", "electronic document";
Consideration of the signs of a traditional document (document on paper) and study of the issue of the compliance of an electronic document with the identified signs;
Definition of the concept of "electronic document management" and its meaning for business entities; research of electronic document management systems, their classification and establishment of methods of legal regulation;
Analysis of the normative and doctrinal definitions of the concepts "analogue of a handwritten signature", "electronic signature", " digital signature"," Electronic digital signature ", their ratio and performance of the function of the details of an electronic document;
Study of the relationship between the used electronic analogue of a handwritten signature and the method of legal regulation of the electronic document management system; studying the problems of legal regulation of the use of an electronic digital signature in an electronic document;
Substantiation of proposals for improving the legislation of the Russian Federation in the field of electronic documents circulation;
Research methodology and technique. In the process of research, 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 research. Forming his views and conclusions on individual issues of this study, the author used works in the areas 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, YAM. Yakovlev.
For a deeper and more detailed analysis of the legal essence of the categories "electronic document", "electronic signature" and "electronic digital signature", the author studied the works of V.A. Gadasin 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. Leontyev, A.G. Sergo, P.S. Simonovich.
To reveal certain aspects of the chosen topic, the candidate 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, in ensuring the functioning of payment systems, in electronic commerce, in the electronic interaction of business entities with authorities.
The empirical basis of the study is the practice of business entities that provide electronic document flow, as well as those who actively participate in it, including Taxcom LLC, S.W.F.T. SCRL, CJSC Corporate Service Center (corporate information system BeSafe).
The scientific novelty of the dissertation research is that it was the first to attempt a comprehensive analysis of electronic document management systems operating in the field of entrepreneurial activity, as well as their classification by the method of legal regulation and schemes of contractual interaction of participants.
An assessment of the legal regulation of relations arising in connection with the implementation of electronic document flow from the point of view of its completeness and sufficiency has been carried out. Legal methods of ensuring the legal significance of electronic documents are analyzed, including the peculiarities of using various electronic analogs of a handwritten signature.
Proposals for improving the legislation governing the use of electronic digital signatures in electronic documents have been substantiated.
In the dissertation, new theoretical positions, practical conclusions and proposals are formulated and substantiated, which are submitted for defense:
1. The concept of "electronic document" is not the same as the concept of "electronic data message" ("electronic message"). The latter cannot have independent legal force, and therefore, the emerging trend of transition to the use of the concept of "electronic data message" ("electronic message") is unreasonable.
2. Any electronic analogue of a handwritten signature agreed by the parties may be used as a requisite identifying the information recorded in an electronic document, unless the current legislation establishes more stringent requirements for such an analogue, in particular, the requirement for authentication of an electronic document.
3. Information system of electronic document management - a system for preparing, sending, receiving, storing or otherwise processing electronic documents.
The definition of the concept "information system of electronic document management" must be fixed in the norms Federal law dated January 10, 2002 No. 1-FZ "On Electronic Digital Signatures".
4. The organizer of the electronic document management information system is an individual or legal entity, or a government body that determines the goals of creating an information system, its functions, operating conditions, including technical ones.
It is advisable to supplement the provisions of the Federal Law of January 10, 2002. No. 1-ФЗ "On Electronic Digital Signatures" with the given definition. At the same time, to 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-FZ "On Electronic Digital Signature" "presumption of authorship": an electronic digital signature in an electronic document is recognized as created by the owner of its public key certificate, unless the owner of the signature key certificate proves otherwise.
6. Fix in the provisions of the Federal Law of January 10, 2002. No. 1-FZ "On Electronic Digital Signature" the requirement to ensure the fixation of the date and exact time of certification of an electronic document with an EDS, as well as the date and exact time of receipt of an electronic document certified by an electronic digital signature, unless a different procedure for determining the time of signing and receiving an electronic document is agreed 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 Signatures" is the maximum period during which the recipient of an electronic document is obliged to verify the electronic digital signature, unless a different period and procedure for calculating it is agreed upon by the participants in the electronic document flow.
8. To supplement the Federal Law of January 10, 2002. No. 1-ФЗ "On Electronic Digital Signatures" by the norm that provides legal entities with the right to suspend (cancel) certificates of electronic digital signature keys of its employees used in the performance of their official duties.
9. To introduce into the Federal Law of January 10, 2002 No. No. 1-FZ "On Electronic Digital Signature" prohibition of delegation of authority by certification authorities and their direct obligation to directly verify the compliance of the data set forth in the application for the production of the certificate of the electronic digital signature key to the documents provided.
10. Change the normative definition of the concept of "confirmation of the authenticity of an electronic digital signature in an electronic document" 7, setting out this definition as follows: confirmation of the authenticity of an electronic digital signature in an electronic document - a positive result of verification by means of an electronic digital signature using a signature key certificate of ownership of an electronic digital signature in electronic document to the owner of the signature key certificate and the absence of distortions in the electronic document signed by this electronic digital signature ”.
In the proposed definition, there is no mention of a certified EDS tool.
11. To fix in the norms of the Federal Law of January 10, 2002. No. 1-ФЗ "On Electronic Digital Signatures" the requirement for mandatory certification of electronic digital signatures only for information systems in which federal government bodies, government bodies of the constituent entities of the Russian Federation and local government bodies participate.
In other cases, the issue of the EDS means used should be resolved on a contractual basis.
12. To oblige by the norms of the Federal Law of January 10, 2002. No. 1-FZ "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 signatures, as well as to compensate for losses caused as a result of the use of uncertified digital signatures in the absence of such notification. n Art. 3 of the Federal Law of January 10, 2002 No. 1-FZ "On Electronic Digital Signature" // "Rossiyskaya Gazeta" of January 12, 2002. - No. 6
At the same time, to exclude the provision of the Federal Law of January 10, 2002 No. No. 1-ФЗ "On Electronic Digital Signatures", which establishes the possibility of imposing on the creators and distributors of uncertified means of electronic digital signatures compensation for losses caused in connection with the creation of these means of keys for electronic digital signatures.
The theoretical significance of the dissertation lies in the fact that its main provisions and conclusions can be used for further scientific research of the legal regulation of the use of electronic documents in business.
The practical significance of the dissertation and approbation of the research results
The practical significance of the dissertation research lies in the fact that the conclusions and generalizations obtained can be used in the systematization and improvement of the norms current legislation RF on the use of electronic documents.
The dissertation materials can be used in teaching courses in business and civil law.
The structure of the dissertation research is determined by the goal and the tasks arising from it. It consists of an introduction, three chapters, a conclusion and a bibliography.
Similar dissertations in the specialty “Civil law; business law; family law; private international law ", 12.00.03 code VAK
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Civil law regulation of electronic commerce in Russia: a modern legal model 2013, candidate of legal sciences Saliev, Ildar Rustamovich
Legal aspects of electronic document management 2007, candidate of legal sciences Shelepina, Elena Aleksandrovna
Civil law regulation of the use of electronic digital signatures in the implementation of banking transactions 2005, Ph.D. in Law Bobritsky, Philip Gennadievich
Legal and organizational problems of informatization and electronic document management in state authorities of a constituent entity of the Russian Federation: On the example of the Voronezh region 2006, Candidate of Legal Sciences Klimovich, Maria Vladimirovna
Conclusion of the thesis on the topic “Civil law; business law; family law; private international law ", Shishaeva, Elena Yurievna
CONCLUSION
The rate of informatization of Russian society is one of the highest in the world. Already today, most of the circulation of documents of business entities is carried out in electronic form. In this regard, the creation of legal conditions for legally significant electronic document flow is of particular importance.
In this work, the author carried out a comprehensive study of the state and problems of legal regulation of the use of an electronic document in business, 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 compliance of its legal features with the features of a document in the traditional sense enshrined in the current legislation, which made it possible to come to the conclusion that an electronic document is a document at a new technical level, and, therefore, should be extended to it. the legal regime of the document, in general.
During 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 of "material carrier of documented information (document)", which includes physical fields. Considering electronic details identifying information as a legal feature 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 the electronic document flow or the rule of law does not establish special requirements for such analogs, for example, the requirement to guarantee invariability and integrity of the electronic document.
Special attention the author devotes 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 the attempt to legislatively consolidate the equality of handwritten and electronic digital signatures, undertaken in the current norms of law, subject to compliance with the requirements of the law. The result of the study was the conclusion about the imperfection of the provisions of the Federal Law "On Electronic Digital Signatures", the need to detail them in bylaws, 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 circulation, on the one hand, the direct consolidation in the rules of the presumption of authorship, according to which an electronic digital signature in an electronic document is recognized as created by the owner of the certificate of its public key, if the owner of the signature key certificate will not prove the opposite, on the other hand, the establishment of the obligation of certification centers to directly verify the compliance of the data set forth in the application for the production of a certificate of an electronic digital signature key to the documents provided.
In addition, the author proposes to fix the requirement of fixing the date and time of signing an electronic document with an EDS and receiving of this document by the addressee, and also to set the maximum period during which the addressee is obliged to check the EDS.
According to the author, it is of great importance for electronic document management in business to provide legal entities with the right to suspend (cancel) certificates of keys for the electronic digital signature of its employees. In addition, the author proposes to provide participants in electronic document management with the right to independently choose EDS tools, and preserve the mandatory use of certified EDS tools only for information systems of electronic document management with the participation of federal government bodies, government bodies of the constituent entities of the Russian Federation and local governments. At the same time, participants in the electronic document management system using non-certified EDS tools must be notified of this.
In the dissertation research the author formulated the definitions of the concepts "electronic document management", "electronic document management system", considered examples of the organization of information systems of electronic document management, and proposed their classification.
List of dissertation research literature Candidate of Legal Sciences Shishaeva, Elena Yurievna, 2005
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According to Russian legal experts, the first attempts to develop a legal basis for electronic documents in our country have been made since the mid-70s, when a number of departmental acts on the requirements for intra-industry machine documents were adopted.
On April 20, 1981, the State Committee for Science and Technology of the USSR, by its Resolution No. 100, approved the "Temporary Industry-Wide Guidelines on Legal Enforcement of Documents Created by Computer Facilities." This act stated that "... a document on a machine medium is used without conversion into a human-readable (visual) form when transferring information to enterprises, organizations and institutions, or for the exchange of information between them" (clause 3). When enterprises entered into an agreement on the exchange of documents on machine media, they were instructed to establish additional details that were to be reflected on human-readable copies of magnetic documents (clause 22). Thus, an attempt was made to regulate the procedure for working with a new type of documents by creating various normative acts in certain sectors of the company's activities.
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 machine-graded machine, created by means of computer technology. Basic Provisions ”October 9, 1984. This State Standard was subsequently the main regulatory and methodological document governing the use of these documents in various fields. The regulatory act under consideration established the mandatory requirements for the composition and content of the requisites that give legal force to documents on a machine carrier and a machine-readable machine generated 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 postal address, name of the document, date of production of the document, code of the person who approved the document. The last requisite in accordance with Article 2.8 should be written in the following form: identification code and the position, surname of the person responsible for the correctness of the production of the document on a machine carrier or a typewriter, or of the person who approved such a document. The ownership of the code by a specific person must be registered with the originating organization. It is also necessary to have technical and software tools and organizational conditions that exclude the possibility of using someone else's codes. Thus, by analogy with the signing of traditional paper documents, it was recommended to use a special code of the document creator or responsible person for documents in machine media.
In September 1986, “ Methodical instructions for the implementation and application of GOST 6.10.4-84 “USD. Giving legal force to documents on a machine medium and a machine-graded machine, created by means of computer technology. Basic Provisions "(RD 50-613-86)", which established the procedure for the introduction and application of GOST in ministries, departments and their subordinate enterprises, organizations and institutions.
Chapter 2 “Requirements for originals of documents” defines that documents on machine media include documents on magnetic machine media (magnetic tapes and disks, floppy disks) and documents on paper machine media (punched tapes, punched cards) (clause 2.1). The creation of documents on machine media and machine grammes can be carried out on the basis of data recorded in the original (primary) documents received via communication channels from automatic recording devices, in the process of automated problem solving or when transferring from one machine medium to another.
In adopted in 1991 " State system documentation support management. Basic provisions. General requirements for documents and documentation services "we meet definitions of the terms -" a machine-readable document is a document suitable for automatic reading of the information contained in it, the main carriers of which are: punched cards, punched tapes and magnetic tapes "and" machine-readable document is a paper document, created by computer technology in writing and executed in accordance with the established procedure ”(chapter 2.3.3).
In 1992, another notable normative and methodological document appeared "Typical instructions for office work in the ministries and departments of the Russian Federation" instructions, and can be used on an equal basis with typewritten documents. "
In addition, article 3.6 "Automation of documentation" speaks about the admissibility of using automated technologies in documenting the activities of relevant organizations. Thus, we see that in the normative and methodological acts, the possibility of using documents on machine media and machine charts in the activities of a certain circle of organizations and institutions, as well as some general definitions, is gradually consolidated.
And only in May 1994, two State standards were adopted - GOST R 34.10-94 “Information Technologies. Cryptographic information protection. Procedures for generating and verifying an electronic digital signature based on a cryptographic algorithm "and GOST R 34.11-94" Information technology. Cryptographic information protection. Caching function ”, which fixed a certain technology for creating an electronic digital signature. The first of the above State standards establishes procedures for the development and verification of 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 implementation of an electronic digital signature system based on this standard ensures the protection of transmitted messages from counterfeiting, distortion, and unambiguously allows to prove the signature of the person who signed the message unambiguously.
The electronic digital signature system is based on methods of cryptographic data protection using a cache function. The algorithm and procedure for calculating the cache function are set out in GOST R 34.11-94 “Information technology. Cryptographic information protection. Caching function ". The caching function is to match an arbitrary set of data in the form of a sequence of binary characters and its image of a fixed short length, which makes it possible to use this function in an electronic digital signature procedure to reduce the time for creating and verifying a signature.
Following the adoption of state standards of the Russian Federation, it became necessary 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 prepared and signed with an electronic digital signature, if there is a procedure for agreeing disagreements in the contract and the procedure for proving the authenticity of the contract and the reliability of the 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 an electronic digital signature. The legal force of an electronic digital signature is recognized if there is a software- technical means ensuring the identification of the signature, and subject to the established regime of their use.
As for the questions legislative regulation Electronic documents and electronic signatures, the first of the laws should be considered the Federal Law "On Information, Informatization and Protection of Information", adopted in 1995. This legal act defines the legal regime for documenting information, the ownership of separate documents and individual arrays of documents in information systems, categories of information by the level of access to it, the procedure for legal protection of information.
Article 2 of the law under consideration offers basic terms and definitions. Of greatest interest are the interpretations of the terms "documented information (document) - information recorded on a material carrier 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, funds, data banks, other information systems) ".
Article 5 "Documenting information" discusses the issues of the legal force of documents obtained from automated information systems. In accordance with paragraph 2 of Art. 5 a document received from an automated information system acquires legal force after it is signed official OK, established by law Russian Federation. The legal force of a document stored, processed and transmitted using automated information and telecommunication systems can be confirmed by an electronic digital signature. The legal force of an electronic digital signature is recognized if there is software and hardware in the automated system that ensure signature identification, and if 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 makes it possible 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 exercised on the basis of a license. The procedure for issuing licenses is determined by the legislation of the Russian Federation. Resolution of the Government of the Russian Federation of April 11, 2000 No. 326 "On licensing certain types Activity ”determined that licensing of activities related to the certification of the identity of an electronic digital signature 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 the 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 rule of law in the 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 by state bodies and enterprises in information and telecommunication systems encryption means, including cryptographic means of ensuring the authenticity of information, and secure technical means of storing, processing and transmitting information that do not have a certificate Federal agency government communications and information under the President of the Russian Federation, as well as the placement of government orders at enterprises, in organizations that use the specified technical and encryption tools, but do not have the appropriate certificate.
With regard 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 sets out the requirements for the written form of transactions. In accordance with clause 2 of this article, the use of facsimile reproduction of a signature by means of mechanical or other copying, an electronic digital signature or another analogue of a handwritten signature is allowed in the cases and in the manner prescribed by law, other legal acts or by agreement of the parties.
Thus, the civil legislation allows the use of an electronic digital signature, but does not specify this provision, but only establishes that special regulation should be carried out by laws and other legal acts, or by a special agreement of the parties.
Article 434 of the Civil Code of the Russian Federation "Form of contract" establishes that the contract can be concluded in any form provided for the conclusion of transactions. In accordance with paragraph 2 of Art. 434, an agreement in writing can be concluded by drawing up one document signed by the parties, as well as by exchanging documents by means of postal, telegraph, teletype, telephone, electronic and other communications, allowing to reliably establish that the document comes from a party to the agreement.
An important provision is the rule that it is allowed to conclude an agreement by exchanging documents using electronic communication. However, it should be possible to reliably establish that the document comes from a party to 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 clause 3, the agreement may provide for the certification of the rights to dispose of the monetary amounts on the account, electronic means of payment and other documents using 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 has issued a number of regulatory documents allowing the use of electronic payment documents in practice.
Of course, one of the latest State standards for office work and archiving - GOST R 51141-98 “Office work and archival business. Terms and definitions ", which provides a list of basic terms and definitions in these areas, mandatory for use in all types of documentation and literature on office work and archiving.
Clause 3 of the State Standard under consideration provides a definition of the term "document, documented information", which is understood as "... information recorded on a material carrier with details that allow it to be identified." As a "carrier of documented information" is meant "a material object used to fix and store speech, sound or visual information on it, including in a converted form" (clause 5).
A document on a machine medium is defined as "... a document created using media and recording methods that ensure the processing of its information by an electronic computer" (clause 17).
Statement " Typical instructions on office work in federal executive bodies ”on November 8, 2005, which was a new edition of the“ Model instructions for office work in ministries and departments of the Russian Federation ”. The objectives of the new Model Instruction are: to establish general requirements for the operation of management documentation services, documenting management activities and organization of work with documents in federal executive bodies, as well as improving the documentation of management and increasing its efficiency by unifying the composition and forms management documents, technologies for working 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, accounting and control of execution, carried out using automated (computer) technologies, which can be considered a progressive step in conditions modern society... But the automated technologies for processing documentary information used in the federal executive body must meet the requirements of the instructions for the office work of this body (clause 1.4, Chapter 1). Thus, in spite of the fact that the term “electronic document” does not appear in the Model Instructions 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 the delivery of documents to federal executive bodies is carried out, as a rule, by means of postal, courier and electric communications. The following are received via electrical communication channels: telegrams (teletype messages), fax messages, telephone messages, messages by e-mail(clause 6.2.2).
Of particular interest is article 6.6 "Reception and processing of documents received via e-mail and facsimile communication", which states that "... electronic messages sent by e-mail are executed similarly to paper documents, subject to certain the execution process "(p. 6.6.2). Further, clause 6.6.3 regulates the very process of working with such documents “is carried out through these mailboxes”.
Thus, the considered provisions of the Model 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, one cannot ignore the legislative acts and normative documents that establish the procedure for working in various industries, but one way or another contain norms that regulate activities with information on electronic media in industry legal relations.
In January 2001, a Resolution of the Pension Fund of the Russian Federation appeared "On the introduction of cryptographic information protection and electronic digital signatures in the Pension Fund of the Russian Federation." The Resolution contains the Regulations for 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 the means of cryptographic protection of information and electronic digital signature "Verba-O / OW" to protect information transmitted in electronic form.
Thus, a closed information system is being created for the exchange of electronic documents between legal entities, individuals and organizations of the Pension Fund of the Russian Federation.
Article 2 of the Regulations under consideration 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, which can be converted into a form suitable for unambiguous human perception, and having attributes for document identification "," electronic digital signature - a sequence of characters obtained as a result of cryptographic transformation of the original information, which allows you to confirm the integrity and invariability of this information, as well as its authorship. "
In the Regulations considered, we see a non-standard definition of the term "electronic document" from the point of view of a document specialist, containing mainly technical issues, as well as certain requirements for the technology of signing electronic documents, which makes it possible to quickly implement a new technology for working with documents in The Pension Fund Russian Federation.
The Federal Law "On Licensing Certain Types of Activities", adopted in August 2001, in Article 17 establishes the compulsory licensing of activities for issuing certificates of electronic digital signature keys, registration of owners of electronic digital signatures, provision of services related to the use and confirmation of the authenticity of electronic digital signatures.
In addition, licensing of activities for the distribution of encryption (cryptographic) means is provided; by their maintenance and on the provision of services in the field of information encryption.
After several years of discussions on various draft laws, the decisive step was the signing of the Federal Law "On Electronic Digital Signatures" on January 10, 2002, creating 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 an electronic digital signature in electronic documents, under which an electronic digital signature in an electronic document is recognized as equivalent to a handwritten signature in a paper document. The scope of application of the law in question extends to relations arising in the course of civil transactions and in other cases stipulated by the legislation of the Russian Federation, but does not apply to relations arising from the use of other analogs of a handwritten signature. The possibility of applying the provisions of the law to other relations is made dependent on the presence of relevant norms in other legislative acts.
Article 3 of the law under consideration 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." Experts believe that the main feature of this term is the absence of a rigid attachment to a specific material medium. One and the same document can exist on different media, so concepts such as original and copy are not applicable to it. All copies of an electronic document identical in content can be considered as originals and differ from each other only by the date of creation. And only a paper copy can be considered as a copy of an electronic document.
To confirm the authenticity of an electronic document, an electronic digital signature is used, which is understood in the law as “... the requisite of an electronic document designed to protect this electronic document from counterfeiting, obtained as a result of cryptographic transformation of information using the private key of an electronic digital signature and allowing to identify the owner of the signature key certificate and also to establish the absence of distortion of information in an electronic document ”. Thus, the creators of the 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 analogs of a handwritten signature, including electronic ones (ciphers, codes, passwords, and so on).
The most important issue of the legal force of an electronic digital signature is set out in Article 4 “Conditions for recognizing the equivalence of an electronic digital signature and a handwritten signature”. 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, while observing following conditions: the signature key certificate has not expired at the time of verification or at the time of signing the electronic document if there is evidence that determines the moment of signing; the authenticity of the electronic digital signature in the electronic document has been confirmed; an electronic digital signature is used in accordance with the information specified in the signature key certificate.
The law under consideration for the first time enshrines at the legislative level the legal institution of certification centers. Chapter 3 is fully devoted to the activities of certification centers, that is, the creation of a special infrastructure for the use of electronic digital signatures in electronic documents.
Chapter 4 of the law under consideration "Features of the use of electronic digital signatures" enshrines 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 government bodies, as well as organizations involved in document flow with these bodies, use electronic digital signatures of authorized persons of these bodies to sign their electronic documents.
I would like to draw particular attention to Article 19, the provisions of which allow the use of an electronic digital signature to certify documents with a seal when they are transferred from paper to electronic. Thus, for the first time in Russian legislation, an attempt is made to abandon the "seal" props and replace it with a certain type of signature acceptable for a given medium, in particular, an electronic digital signature, which, in accordance with the law, already has the properties of two requisites: "signature" and "seal ".
Obviously, the adoption of the Federal Law "On Electronic Digital Signatures" allowed at the legislative level to define the basic concepts such as "electronic document" and "electronic digital signature", endowing them with the appropriate legal force, as well as to determine the general points of application in practice of the selected technology of electronic signing documents. But practical use 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" showed 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 introduced, containing a provision that "... if technical capabilities are available 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 revision of the law under consideration, dated 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 transfer to the organization the receipt of acceptance in electronic form (article 15 clause 5).
In the first edition of the Law "On Accounting", only the provision was fixed that "... primary and consolidated accounting documents can be drawn up on paper and computer media. In this case, the organization was obliged to make copies of such documents on paper at its own expense for other participants in business operations and for regulatory authorities ”(Article 9, Clause 7).
Almost immediately after the adoption of the Federal Law "On Electronic Digital Signature", which consolidated the concept of "electronic document", the "Basic Rules for the Archives of Organizations" were adopted - a regulatory and methodological document that defines the procedure for working with different kinds 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 ordinary archives of organizations that are obliged to ensure the safety, selection, accounting, use, as well as the preparation and transfer of such documents for state storage (clause 1.3.4).
Electronic documents can be stored either in the archive of the organization, or in a special unit (computer center, information department etc.). But the prerequisites for the archival storage of electronic documents are: the presence in the archive of software and hardware for their storage, copying and reproduction, rewriting into new formats and transmission via communication channels; ensuring access to information for established categories of users, as well as ensuring the protection of information from unauthorized access through the use of appropriate technical means and legal norms; ensuring the storage mode of electronic documents, excluding the loss, destruction or distortion of information (Art. 4.4.2.5).
An important point is that when preparing electronic documents for filing into the archive, it is necessary to prepare a complete set of accompanying documentation, which, in addition to the traditional ones, should include some special points: the name of the document, the date of its creation, the characteristics of the content, the electronic format, the physical and logical structure ( for databases, websites, etc.), the volume of the document (Art. 2.3.5).
The maximum period for temporary storage of archival documents in an organization is set the same for all documents on machine media - five years. The 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 ones should be taken into account, such as: the cost of a possible translation of electronic documents into another format, the availability of accompanying documentation and corresponding electronic equipment.
And electronic documents are carried out at the state and local (organizational) level. It should be noted that in many respects the problems of developing local documents in the field of using the EDMS and electronic documents are associated with the shortcomings of the current legislation:
● there is no law on electronic documents;
● there is no law on archival storage of electronic documents;
● there is no federal law on management documentation;
● the conceptual apparatus in the area is not fully formed.
Due to the shortcomings and shortcomings at the state level of government, the management documentation service (DOU), together with the informatization departments, are themselves forced to develop documents regulating the work with electronic documents in the conditions of using the EDMS.
To effectively solve the tasks and achieve the goal, legislative acts, regulatory and methodological documents, special editions, including conference proceedings in the field of management documentation, were studied.
The improvement of preschool educational institutions and, as a result of this process, the widespread introduction of EDMS, becomes unthinkable without the use of electronic documents. In this regard, it should be noted that “the legal regulation of issues of working with electronic documents presupposes, first of all, the 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 for their legal force, that is, the establishment of the procedure for their certification (composition and methods of registration of details), as well as protection from distortions in the process of electronic exchange. "
Modern state regulation of electronic document management in Russia includes legislative acts affecting the issues of preschool educational institutions and regulatory and methodological documents regulating modern organization electronic document management.
Legislative acts of the Russian Federation affecting issues electronic document management
In accordance with the current federal legislation, the fundamental legislative act 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 27.07 .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 another analogue of the handwritten signature of the sender of such a message, in the manner prescribed by federal laws, other regulatory legal acts or by agreement of the parties, is considered an exchange of documents.
The next equally important legislative act in the field of electronic document management is the Federal Law "On Electronic Signature" dated 06.04.2011 No. 63-FZ, which provides the legal conditions for using an electronic signature in electronic documents as an analogue of a handwritten signature in a paper document. In other words, an electronic signature as a requisite of an electronic document, designed to protect this electronic document from counterfeiting, identifying the owner of the signature key certificate is used to certify electronic documents, including when using the EDMS and ED. This law also defines an “electronic document” as a document in which information is presented in electronic form. This law, as well as its differences from the previous law on electronic digital signatures, will be considered in more detail 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 an organization, first of all, when working with documents on personnel.
"The issues of working with electronic documents are also touched upon in regulatory legal acts devoted to certain subject areas of legal regulation: civil, administrative, criminal, criminal procedural, 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 the electronic signature verification key" dated December 27, 2011 No. 795 establishes the requirements for the set and order of arrangement of fields of 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 telecommunications channels using electronic digital signature" establishes procedures for interaction between participants in electronic document flow within the framework of issuing and receiving invoices in electronic form via telecommunication channels with the use of an electronic signature.
Civil Code of the Russian Federation (Civil Code of the Russian Federation). This law stipulates that the document is the basis of civil legal relations and contains fundamental concepts such as "deal" and "contract". The possibility of signing documents with an electronic signature (clause 2 of article 160) and exchange of documents using electronic communication (clause 2 of article 434) has been fixed.
The RF Code of Administrative Offenses in clause 2 of Art. 26.7 contains a provision that documents may contain information recorded both in writing and in another form. The documents may include materials of photography and filming, sound and video recordings, information databases and data banks and other information carriers.
The Criminal Code of the Russian Federation provides in Art. 272-274 responsibility for illegal 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 Art. 75), Criminal Procedure Code of the Russian Federation(in art. 74), Civil Procedure Code of the Russian Federation(in Art. 71) contain provisions allowing to consider electronic documents as material evidence, while a prerequisite certification of such documents is the presence of an EDS.
Industry codes also contain provisions for dealing with electronic documents in their respective fields of activity. In particular, the Tax Code of the Russian Federation in Art. 80 contains permission to submit tax reports in electronic form. The Customs Code of the Russian Federation in clause 8 of Article 63 also states that the documents required for customs clearance can be submitted electronically. Labor Code RF, 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 in the Labor Code of the Russian Federation were introduced by the entry into force of Federal Law No. 60 of 05.04.2013. "On Amendments to Certain Legislative Acts of the Russian Federation").
Federal Law "On Accounting" dated 06.12.2011 No. 402-FZ. The law establishes uniform requirements To accounting... In Art. 9 indicates the required details of the primary accounting document, as well as general procedures related to it, such as signing and correcting. In addition, paragraph 5 of Art. 9 allows to draw up 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 storage, acquisition, accounting and use of archival documents are regulated by the Federal Law "On Archival Affairs in the Russian Federation" dated 22.10.2004 No. 125-FZ. In Art. 5 of the law states that the Archive Fund includes archival documents located on the territory of the Russian Federation, regardless of their source of origin, time and method of creation, type of media, form of ownership and storage location, including electronic and telemetric documents.
When using EDMS and ED, there is an urgent need to ensure information security and protection of processed and stored information. In addition to the Federal Law "On Information, Information Technologies and Information Protection", in this regard it is necessary to know the provisions of the Federal Law "On State Secrets" dated July 21, 1993 No. 5485-1 and the Federal Law "On Commercial Secrets" dated July 29, 2004. № 98-ФЗ (if information is created in the organization's activities that constitutes these types of secrets).
Regulatory and methodological documents governing a modern organization electronic document management
State system of preschool educational institutions contains recommendations for the execution of management documents, organization of work with documents, including a separate paragraph devoted to the automation of work with documents. Section 4.3 states that automated technology work 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 automated workstations. At the same time, information and technical compatibility of computer equipment with each other should be ensured.
Mainly, the classifiers of technical, economic and social information can be used by organizations to form the corresponding system directories EDMS and ED. “Currently, in connection with the massive introduction of automated document management systems, the use of classifiers is of 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 remuneration, approved By the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1. it is used for the preparation of personnel documentation. When using an electronic document management system and an electronic document, a system directory containing form data can be created.
To determine the norms of time for the main types of work on preschool educational institutions, including when using automation systems, the following regulatory documents are used:
Interindustry consolidated time standards for work on preschool educational institutions, approved Resolution of the Ministry of Labor of the Russian Federation of November 25, 1994, No. 72;
Time norms for work on automated archival technology and documentation support for governing bodies, approved. Decree of the Ministry of Labor of the Russian Federation of 10.09.1993, No. 152;
Time norms for work on documentation support of administrative structures of federal executive bodies, approved by By the Decree of the Ministry of Labor dated March 36, 2002, No. 23.
For federal executive bodies, when organizing internal activities, they have been developed (approved by order of Rosarkhiv dated December 23, 2009 No. 76). These recommendations can be pivotal for any organization.
In addition, other recommendations developed by Rosarkhiv will be useful.
Next, let us turn to domestic standards that 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 the design of the requisites of documents; requirements for forms of documents (including electronic).
International standards in the field electronic document management
In Russian legislation, there are no uniform standards, requirements for electronic document management systems, which could be guided by when choosing a system. At the same time, in the West, these standards have long been created and are in force, 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 European Union 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 is he who could be advised as a recommendation when choosing an electronic document management system.
An electronic document management system can be presented as a specialized development package, several separate integrated packages, custom development or a combination of them. What each organization decides to choose independently. 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 auditing the use of the system;
● potential customers: as a basis for writing technical specifications;
● specialized educational institutions: as a teaching material for writing training courses on electronic office work. eight
In general, the standard is undoubted recommendations for choosing an electronic document management system, as well as drawing up a technical task. Currently, a huge variety of different electronic document management systems are presented on the market, differing from each other in functionality, but similar in description. This makes the choice of the system quite difficult. Following the MoReq recommendations allows an organization to draw up its own list of requirements for an electronic document management system, meet what criteria, and choose a system that will be most optimal for a particular organization. eight
The use of international standards in the Russian Federation is not mandatory, however, it must be borne in mind that at present the standardization of work with documents is moving to the international level. Therefore, when using EDMS and ED in our country, it is advisable to focus on the provisions and international standards in the field of electronic document management.
ISO 15489 "Information and Documentation. Document Management "was developed by Subcommittee No. 11" Archives (Documents) Management ", acting in the structure of the Technical Committee No. 46" Information and Documentation "of the International Organization for Standardization. This is "the first international standard for the organization of office work and workflow, containing General requirements and methodology for managing documents in all types of media and in all formats, as well as procedures for the development and implementation of document management systems ”. Moreover, "the ISO 15489 standard uses a modern functional approach to the organization of workflow, which allows you to link regulatory requirements (for example, the status of a" document ", retention periods, etc.), with the business functions, as a result of which this information material arises."
Thus, "in conditions when the regulatory and methodological base of domestic office work has been reduced to a minimum for various reasons, and there is practically no state regulation of document management issues, this standard can become a good methodological base for management documentation services in Russian organizations."
International standard ISO 23081 “Information and documentation. Records management processes. Metadata for records ”is devoted to record keeping metadata in management activities, their types, functions to support managerial and record keeping processes, as well as metadata management.
Requirements for storing 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, the issues of creating and using electronic documents are resolved by departments independently. There are regulations from federal authorities, especially those interested in the fast and accurate transmission of documented information. These are acts of financial authorities, tax authorities, customs service and etc.
When using electronic document management systems and ED, one should also take into account the legislative acts of the constituent entities of the Russian Federation and legal acts adopted by the executive authorities 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.-P.7
Larin M.V. Electronic documents in management: scientific and methodological manual / M.V. Larin, O. N. Ryskov.-VNIIDAD.-M.: 2005.-P.11
Larin M.V. Electronic documents in management: scientific and methodological manual / M.V. Larin, O. N. Ryskov.-VNIIDAD.-M.: 2005.-P.12
Larin M.V. Electronic documents in management: scientific and methodological manual / M.V. Larin, O. N. Ryskov.-VNIIDAD.-M.: 2005.-P.20
Ryskov O.I. Classifiers of documents and information as part of the regulatory framework of the AU office work // Documentation in information society: Unification and standardization of interdepartmental corporate document flow: Reports and messages at the IX International Scientific and Practical Conference March 05-06, 2003 - Rosarkhiv. VNIIDAD.- M., 2003.-P.241
Khramtsovskaya N.A. Regulations required for electronic document flow in the organization / N.A. Khramtsovskaya // Documentation in the information society: Unification and standardization of interdepartmental corporate document flow: Reports and messages at the IX International Scientific and Practical Conference March 05-06, 2003 - Rosarchiv. VNIIDAD.- M., 2003.-P.292-293
Ibid, O.I. Ryskov On the relationship between the provisions of the international standard ISO 15489 and the modern regulatory framework of the preschool educational institution of the Russian Federation: terminological analysis. - S.292-293
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