Electronic documents are gradually becoming an element of economic activity Russian companies. They are convenient, allow you not to litter the office with a bunch of paper, and companies can exchange such documents in a matter of seconds. But what is needed for an electronic document to have legal force? And how to prove the legal force of an electronic document in court?

These questions are answered by the lawyer of the B2B-Center electronic trading system Dmitry Kazantsev.

Legal force of electronic

document

The current Russian legislation recognizes the possibility of processing a transaction using an electronic document, provided that such documents are signed with an electronic signature. The relevant rules are enshrined in Art. 434 of the Civil Code of the Russian Federation and in part 4 of Art. 11 of the Federal Law of July 27, 2006 No. 149-FZ “On Information, information technology and on information protection” (hereinafter - Law No. 149-FZ).

In electronic form, not only contracts, but also primary and consolidated accounting documents can be drawn up - provided that they are certified by an electronic signature (Article 9 of the Federal Law of November 21, 1996 No. 129-FZ "On Accounting"). Article 169 of the Tax Code of the Russian Federation expressly allows the preparation and issuance of invoices in in electronic format by mutual agreement of the parties to the transaction and if they have compatible technical means for receiving and provided that the electronic invoice is signed by a qualified electronic signature of the head of the company or a person authorized by him (the procedure for issuing and receiving invoices in electronic form was approved by order of the Ministry of Finance of Russia dated 04/25/11 No. 50n, and the formats for them - by order of the Federal Tax Service of Russia No. ММВ-7-6 / [email protected] approx. auth.).

In this way, key element any electronic document, indicating its legal force and confirming the fact of sending by the appropriate party, is an electronic signature. Its presence is not the last fact in the course of the trial, and therefore it is necessary to say more about the legal regulation of the electronic signature.

Electronic

In paragraph 1 of Art. 6 of the Federal Law of April 6, 2011 No. 63-FZ "On Electronic Signature" (hereinafter - Law No. 63-FZ) establishes that according to general rule information in electronic form signed with a qualified electronic signature is recognized as an electronic document equivalent to a paper document signed with a handwritten signature. A similar rule is established in paragraph 3 of Art. 11 of Law No. 149-FZ. This requirement is formulated as an imperative norm, but the courts have the right to recognize a simple signature as a proper certification of information, which they often do in practice.

Here we come to the question of the types of electronic signatures legalized in modern Russian legislation. Article 5 of Law No. 63-FZ names the following types of electronic signature:

1. Simple electronic signature.

When it is applied, the fact of the formation of an electronic signature by a certain person is confirmed by using codes, passwords or other means.

2. Enhanced electronic signature.

She must:

1) be formed as a result of cryptographic transformation of information using an electronic signature key;

2) allow to identify the person who signed the electronic document;

3) allow to detect the fact of making changes to the electronic document after the moment of its signing;

4) be created using electronic signature means.

3. Enhanced qualified electronic signature.

Enhanced electronic signatures are divided into qualified and unqualified. The verification key of the enhanced qualified electronic signature must be specified in the qualified certificate.

Information in electronic form, signed with a simple electronic signature or an unqualified electronic signature, is recognized as an electronic document equivalent to a paper document signed with a handwritten signature. If, in accordance with the law or business practice, a document must be certified with a seal, then an electronic document signed with an enhanced electronic signature is recognized as equivalent to a paper document signed with a handwritten signature and certified with a seal. This rule is established by parts 2 and 3 of Art. 6 of Law No. 63-FZ. In other words, simple and unqualified electronic signatures correspond to an autograph, and an enhanced signature corresponds to the certification of a document by a signature and a seal. Thus, an enhanced unqualified signature can be recognized as both an analogue of a signature and an analogue of a signature with a seal.

Electronic

document in court

Documents sent via e-mail, in accordance with the above classification, can be called signed with a simple electronic signature. However, the court may recognize the exchange of such documents as the proper conclusion of an agreement if the circumstances of the case indicate the reality of the transaction: for example, the delivery of goods is carried out, which is confirmed by invoices, waybills and payment orders. In particular, such a legal position is confirmed by the decision of the Supreme Arbitration Court of the Russian Federation of October 17, 2008 No. 13675/08.

An electronic document is submitted to the court in a printed form with a certificate of the head or an authorized employee of the organization submitting this document to the court. This certificate must indicate that the printed hard copy corresponds to the electronic original. If the document is signed with a simple electronic signature, then at least the date and time of the formation of such an electronic document and the party that sent this document should be clear from the submitted printout. If the electronic document is signed with an enhanced signature, then the printout must contain a special mark on the electronic signature.

The court may recognize an agreement concluded via e-mail if each of the parties has submitted identical printouts of such an agreement. At the same time, such even identical paper copies, not confirmed by other evidence, cannot serve as a fact of confirmation of the conclusion of the contract. But what if the evidence is not collected, and the copies of the agreements submitted by the parties contain different conditions? It is for the prevention of such situations during the trial that it is necessary, even at the conclusion of the contract, to certify it with an enhanced qualified electronic signature.

Such a signature will make it possible to certify two fundamental points: firstly, that the contract was signed by the proper party (since the certificate is registered and issued with the position of the signatory), and secondly, that the document signed with an enhanced qualified electronic signature remained unchanged after signing.

In part 1 of Art. 4 of the Federal Law of January 10, 2002 No. 1-FZ "On Electronic digital signature”, which is still valid, the following signs have been established, with the simultaneous observance of which an electronic digital signature is considered equivalent to a handwritten one:

1. The signature key certificate is valid at the time of verification or at the time of signing the electronic document.

2. The authenticity of the electronic signature in the electronic document has been confirmed.

3. An electronic signature is used in accordance with the information specified in the signature key certificate.

The authenticity of an electronic signature and the immutability of an electronic document signed with this signature can be confirmed by the certification center that issued such a signature. If a dispute arises in court about the content of an electronic document, it is necessary to order an examination in a certification center. He will also be able to confirm the validity of the signature certificate at the time of signing the electronic document.

It is necessary to take into account the fact that the certification center cannot confirm or deny the authenticity of the electronic signature issued by another certification center. Therefore, if an electronic document is certified by several electronic signatures issued by different certification centers, then in the event of a dispute about the content of the document, an examination will need to be ordered from each of these certification centers.

The use of electronic documents creates a number of certain difficulties. One of the main problems of using such documents is to ensure the legal force of an electronic document. To solve this problem, a special requisite of an electronic document is provided - an electronic digital signature.

Electronic digital signature - an attribute of an electronic document designed to protect this electronic document from forgery, obtained as a result of cryptographic transformation of information using the private key of the electronic digital signature and allowing to identify the owner of the signature key certificate, as well as to establish the absence of information distortion in the electronic document. An electronic digital signature ensures the legal equivalence of a handwritten signature. However, the use of an electronic digital signature does not guarantee the absolute protection of an electronic document from the distortion of significant legal information (in fairness, it should be noted that absolute protection cannot be guaranteed at all). To this end, the legislation provides for a number of other organizational, legal and technical measures to ensure the authenticity of electronic documents.

In modern Russian law, an electronic digital signature is already used in several areas:

• 1. Financial and credit relations
• 2. Tax relations
• 3. Civil transactions

There are several restrictions on the implementation electronic document management in certain areas. A number of regulatory legal acts provide for a ban on the use of electronic documents in certain legal relations or stipulate the preference for written documents on paper. Thus, the legislation on notaries does not provide for the possibility of compiling documents in electronic form, here the concept of “document” means only written information.

For example, in Art. 45 of the Fundamentals of the Legislation of the Russian Federation on Notaries states that the sheets of a document submitted for notarial acts must be stitched, numbered and sealed, which is physically impossible for documents in electronic form. Such an example is important, since some documents, including those necessary for doing business via the Internet, are provided for their notarization. There are also such legal acts where there is no prohibition as such, but documents on paper are called preferable. . For example, when registering rights to real estate (a procedure that could possibly be performed via the Internet), if there are discrepancies in the records on paper and magnetic media, the record on paper has priority (clause 8, article 12 of the Federal Law of the Russian Federation “On state registration of rights on real estate and transactions with it” dated July 21, 1997 No. 127). A similar provision is fixed in the Law of August 8, 2002 No. 129-FZ “On registration legal entities”(clause 1, article 4).

Currently, the fundamentals of notarial legislation are focused on traditional paper documents signed with a handwritten signature and do not cover the specifics of electronic data interchange.

To solve problems in this area, it is possible to use more extensive use of document management automation tools, including the use of simplified digital signature technologies.

It is possible, in some cases, to use a simplified procedure for certifying transactions, since it is in the interests of the parties concluding a transaction to receive an electronic document of a universal format (which does not require special expensive software to read the contents of the document), equal in legal force to a paper carrier.

However, it should be noted that simplification should be understood as the technical implementation of the certification procedure, and not the rejection of legally significant actions that the parties are required to perform in full (See: Federal Law "Fundamentals of the legislation of the Russian Federation on notaries", Chapter IX). You can digitally sign PDF files using Adobe Acrobat Professional software. The procedure for concluding a transaction may be as follows: the parties to the transaction, having agreed on all the essential conditions of the legal relationship, transfer to a special service for certifying electronic documents (the organizational affiliation of such services is indicated above) an electronic document that is converted into PDF format in their presence, the newly created file is entered information about the persons making the transaction, and the electronic signature of a specialist is put on the document. The document is stored on several physical media (it is important that they are not rewritable!): two media in the identity service (one is stored as the main one, the other is used in cases where the authenticity of the document is necessary, for example, to demonstrate the document during a trial), the rest - in count interested parties. The duty of the service to keep media with electronic documents at home or conclude an appropriate agreement with a specially authorized organization (create an appropriate infrastructure for organizations and legally regulate the licensing procedure and the activities of the above organizations). Shelf life of media is 5 years. In the future, the issue of the fate of the carriers will be decided without taking into account the opinions of the parties concluding the deal.

When introducing an electronic signature in this area, it is necessary to temporarily limit the volume of transactions that can be certified in the specified order, since at the initial stage it is impossible to take into account all the nuances of a legal and technical nature. Moreover, it is necessary to retain the choice for the person concluding the transaction, in what - traditional paper or electronic form - to certify the agreement reached.

Thus, we can conclude that electronic documents have become increasingly widely used, the use of which provides a lot of advantages for users:

• 1. Acceleration of workflow processes;
• 2. The ability to transmit a document through digital communication channels;
• 3. Easily changeable content (editing);
• 4. Theoretical possibility of eternal storage;
• 5. Unlimited copies that have legal force, etc.

We also found out that the main difficulty of an electronic document is to ensure the legal force of an electronic document. To solve this problem, a special requisite of an electronic document is provided - an electronic digital signature.

And with electronic document management, do these documents have legal force? how to confirm the fact of shipment? thanks in advance!

How to organize paperwork in accounting. The legal force of electronic document management. What should be reflected in the accounting policy about electronic document management.

Question: And with electronic document management, do these documents have legal force? how to confirm the fact of shipment?

Answer: Yes, documents signed with an electronic signature (qualified, simple, unqualified) are recognized as equivalent to documents on paper, have the force of paper documents with a handwritten signature.

Such a statement follows from the provisions of paragraphs 1 and 2 of Art. 6 of the Law on Electronic Signature dated April 6, 2011 No. 63-FZ.

Rationale

How to organize paperwork in accounting

Electronic Documents

How to issue and certify an electronic primary document

Primary documents can be drawn up both on paper and in electronic form (part 5 of article 9 of the Law of December 6, 2011 No. 402-FZ). The latter option is possible if the documents are certified by an electronic signature ().

The format for submitting a document on the transfer of goods during trading operations in electronic form was approved by order of the Federal Tax Service of Russia dated November 30, 2015 No. ММВ-7-10/551. The format for submitting a document on the transfer of the results of work (a document on the provision of services) in electronic form was approved by order of the Federal Tax Service of Russia dated November 30, 2015 No. MMV-7-10 / 552. These formats are relevant both in business activities and when submitting documents at the request of the inspection in electronic form.

And if the organization draws up documents not in the format approved by the Federal Tax Service of Russia? Then submit the forms to the inspectors on paper - certify the copies with a note that the documents are signed with an electronic signature.

Similar clarifications are given in the letter of the Federal Tax Service of Russia dated November 10, 2015 No. ED-4-15 / 19671.

For details on how to submit documents to tax inspectors, see:

1. How to submit documents at the request of inspectors during a desk tax audit;
2. How to submit documents at the request of inspectors during an on-site tax audit.

Electronic signature

There are the following types of electronic signature:

1. simple;
2. reinforced unskilled;
3. reinforced qualified.

What electronic signature to use for primary accounting documents - set federal standards accounting (clause 4, part 3, article 21 of the Law of December 6, 2011 No. 402-FZ). But at present there is no such standard. Therefore, you can sign the primary with any electronic signature.

A document that is signed with a simple or enhanced unqualified signature has the effect of a paper document with a handwritten signature. But only if there is an agreement between counterparties to verify these signatures. Similar conclusions follow from paragraphs and article 6 of the Law of April 6, 2011 No. 63-FZ and are confirmed by letters of the Ministry of Finance of Russia of January 13, 2016 No. 03-03-06 / 1/259, of May 5, 2015 No. 07- 01-06 / 25701 , dated August 4, 2015 No. 03-03-06 / 44905 , Federal Tax Service of Russia dated May 19, 2016 No. SD-4-3 / 8904 .

It should be noted that earlier the Ministry of Finance of Russia took a different position: primary documents need to be certified only with an enhanced qualified signature. If you use a simple or enhanced unqualified signature, then documents cannot be accepted for accounting and tax accounting. Such clarifications were given by the Ministry of Finance of Russia in letters dated April 12, 2013 No. 03-03-07 / 12250, dated December 25, 2012 No. 03-03-06 / 2/139, dated May 28, 2012 No. 03-03- 06/2/67, July 7, 2011 No. 03-03-06/1/409.

Taking into account the fact that in later letters the Ministry of Finance of Russia softened its position, digital documents can be certified with any electronic signature. However, it is safer to use an enhanced qualified signature.

What should be reflected in the accounting policy about electronic document management

If the organization decided to draw up primary documents in electronic form, this method of maintaining documentation must be reflected in the accounting policy. In particular, in the accounting policy it is necessary to fix:
- a list of documents involved in electronic document management;
- a list of employees who have the right to sign electronic documents;
- a method of electronic document exchange (with or without the involvement of an electronic document management operator);
- the procedure for storing electronic documents;
- the method of submitting documents at the request of the tax inspectorate (in electronic form or on paper).

But the formats of electronic documents that the organization uses are not required to be reflected in the accounting policy. This was confirmed by the Federal Tax Service of Russia in a letter dated November 10, 2015 No. ED-4-15 / 19671. Although this letter is about accounting policy for tax purposes, the conclusion of the Federal Tax Service of Russia is also relevant for accounting policy for accounting purposes.

Federal Law No. 63-FZ dated April 6, 2011 On Electronic Signature

Article 6

1. Information in electronic form, signed with a qualified electronic signature, is recognized as an electronic document, equivalent to a paper document signed with a handwritten signature, and can be used in any legal relationship in accordance with the law Russian Federation, except if federal laws or regulatory legal acts adopted in accordance with them establish the requirement that the document be drawn up exclusively on paper.

2. Information in electronic form, signed with a simple electronic signature or an unqualified electronic signature, is recognized as an electronic document equivalent to a document on paper signed with a handwritten signature, in cases established by federal laws, regulatory legal acts adopted in accordance with them, or an agreement between participants in an electronic interactions. Regulatory legal acts and agreements between participants in electronic interaction that establish cases for recognizing electronic documents signed with an unqualified electronic signature as equivalent to paper documents signed with a handwritten signature should provide for the procedure for verifying an electronic signature. Regulatory legal acts and agreements between participants in electronic interaction establishing cases of recognition of electronic documents signed with a simple electronic signature as equivalent to paper documents signed with a handwritten signature must comply with the requirements of Article 9 of this Federal Law

Under legal force any document is understood the ability of a material carrier with information recorded on it alone or in combination with other documents to cause certain legal consequences. It is the legal force of the document that determines its legal significance and the possibility of using it as evidence in court.

GOST R51141-98 "Office work and archiving. Terms and definitions" defines legal force document as official document property, attached to it by the current legislation, the competence of the body that issued it and the established procedure for registration.

So, the legal force of the document is interpreted as:

• 1) place in the general hierarchy of normative legal acts
• (law, decree, decree, instruction, etc.);
• 2) obligation based on the principle of legality;
• 3) the competence of the body that issued the act.

In addition, in all cases, the document must be drawn up in the prescribed manner, and also come from a person authorized to create it.

GOST 2.051-2006-ESKD "Electronic Documents. General Provisions", put into effect by order of Rostekhregulirovanie dated June 22, 2006 No. 119-st, established that an electronic document consists of two parts: meaningful and requisite. Moreover, additional details can be entered into the requisite part, taking into account the peculiarities of the application and circulation of the electronic document. The nomenclature of additional details and the rules for their certification are established by the regulatory documents of the enterprise itself.

In this regard, the requisite part of any document is of particular importance. Let's consider it in more detail.

The content of the document and its legal form are always linked to certain requisites, as a rule, characterizing the subjects who compiled and certified the document and allow them to be identified. The requisites, in turn, are linked to the external and internal form of the document presentation. GOST R 51141-98 "Office work and archiving. Terms and definitions" defines the details of the document as an obligatory element of its official registration.

Guidelines for the correct execution of documents and inclusion in their content required attributes is GOST 6.10.4-84 "Giving legal force to documents on a machine medium and a machine program created by computer technology. Basic provisions", approved by the USSR State Standard of October 9, 1984 No. 3549. Among the details, this GOST calls the registration number of the document; registration date; signature (code) of the person responsible for the preparation of the document or the person who approved the document; the content of the document; name of the organization - the creator of the document; location of the organization, etc. It should be noted that GOST 6.10.4-84 also allows the introduction of additional details into the document on a machine medium.

Exists permanent part of props document (an invariable part of the document applied during its manufacture) and variable part of props(changeable part of the details of the document, entered when filling it out).

The absence of one or more details entails the nullity or invalidity of the electronic document. If the content or requisite part of the document is distorted, the document can be falsified. Such an untrue document in some cases entails adverse consequences for its originator or bearer. For example, in case of detection of falsification or forgery of such a document, a negative legal liability of the persons who committed such actions arises. In particular, administrative responsibility is provided for by the Code of Administrative Offenses of the Russian Federation in Art. 14.13 (falsification of accounting and other accounting documents); Art. 19.23 (forgery of documents, stamps, seals or forms, their use, transfer or sale); criminal responsibility stems from Art. 186.187, 233, 292, 327 of the Criminal Code of the Russian Federation.

Details of traditional documents. The legal force of an official document ensures the availability of the necessary details. Mandatory details for some types of documents are the presence of the text itself, signature, date of manufacture (compilation), name of the organization - the author of the document, organization code according to the national classifier of enterprises and organizations (OKPO), document name, date, index, text, visas, signature of officials persons, a mark on the execution of the document and its direction in the case. Depending on the type of document and the procedure for its preparation and execution, the composition of the details may be very different.

Details of the electronic document. An electronic document should have a wider range of details, called metadata, compared to traditional, paper documents. This is because modern technologies allow you to make changes to the text without leaving any traces on the machine medium, therefore, in order to ensure the reliability of an electronic document, additional legal and technical protection mechanisms are needed. Let's name just a few of them:

• 1) supply of the ES document;
• 2) the presence of another analogue of a handwritten signature, for example, an EGP, which is an electronic analogue of traditional seals, stamps, handwritten signatures (facsimile). In particular, the EGP can be immediately put into a text and graphic document of the Word editor, without requiring additional printing and scanning of the document. Thus, a document signed by the EGP is additionally protected from editing and illegal copying;
• 3) calculation of the control characteristic of the file according to certain algorithms (calculation of the hash function).

Details, together with the content, give the document some certainty and carry additional information. Thanks to these attributes, the document is given a strong-willed orientation; this happens, for example, at the time of signing the network contract by the parties. Details serve as proof that the information included in the content of the document was prepared and recorded on the carrier by the very person on whose behalf the document was signed and released into civil circulation.

The analysis showed that the signs of the legal force of the document are:

• 1) identification of the person who signed (compiled) the document;
• 2) the availability of details (signatures, seals, other output data);
• 3) the possibility of using the document as evidence in court; a document with details is able to certify certain facts, which does not allow it to be changed or deleted without control.

So, the legal force of an electronic document is determined by the presence of the necessary attributes and the implementation of the necessary legal procedures for their execution. At the same time, an electronic document also has its own specific features, due to a different technology for its production and circulation. The main difference between an electronic document lies in the fact that it is impossible to sign in it or on it in writing.

• GOST 2.051-2006-ESKD. Electronic documents. General provisions. M.: Standartinform, 2006.
• GOST 6.10.4-84. Giving legal force to documents on a machine carrier and a machinogram created by computer technology. Basic provisions. Moscow: IPK Standards Publishing House, 2001.

This article will focus on the use of electronic document management based on EDS in commercial activities in the relationship of commercial organizations, provided that these organizations do not have the preconditions in advance to trust each other "by word", and any result of their interaction is documented in order to have in the future, an evidence base in order to be able to defend both their rights and the obligations of the opposite side.

Such relationships between organizations provide a wide scope for the use of EDS as an analogue of a handwritten signature. It will be superfluous to pay attention to the fact that all these electronic papers require legal significance in order for each of the parties to be sure that the other party will fulfill its obligations. Although, what is the legal significance of an electronic document? Generally speaking, a legally significant electronic document is an electronic document that has these properties, that the rights and obligations of any of the parties arising from this electronic document are protected by the current legislation, in our case, the legislation of the Russian Federation.

In world practice, it is customary to ensure the legal significance of an electronic document using an EDS. Regulatory framework for the implementation of a legally significant electronic document management based on an EDS when formalizing legal relations in the Russian Federation

Today, the current Russian legislation provides for 2 methods for implementing a legally significant workflow based on an EDS.

Method I is regulated only by the Civil Code of the Russian Federation, article 160 of which assumes that "the use of an electronic digital signature or other analogue of a handwritten signature in transactions is allowed in situations and in the manner stipulated by the agreement of the parties."

So, 2 parties have the opportunity to sign an ordinary contract on paper stating that in their subsequent relations they will use the EDS, seal it with their own signatures and use it from now on. Naturally, jurisprudence has shown that it is necessary to prescribe a lot of subtleties in the contract, such as the engineering features of using this signature, the actions of either party if one of the parties does not recognize the signature as valid, etc., although in general such a mechanism has been working and is working successfully already a very long time. By the way, the agreements between organizations and banks on the implementation of electronic document management using EDS were based on this legal basis for a long time, however, a number of instructions were issued by the Central Bank of the Russian Federation to standardize, unify and control this device.
However, this method has several significant drawbacks. The first of them is that if an organization plans to interact with all or at least half of its counterparties by means of electronic document management, then it will be necessary to conclude agreements with all of them on the use of EDS, which seems to be quite problematic. The second drawback is that, according to the concluded agreements, the EDS of a specific specification will be applied, which neither the organization itself nor its counterparties will probably ever be able to apply in relations with other partners of their own.
As you know, method I, based only on the Civil Code of the Russian Federation, is quite easy to use, although not too convenient. It seems unlikely that on the basis of such a device in the Russian Federation an electronic digital signature will be developed.

Method II is seriously more promising.

In fact, it progresses from the usual contract for the use of EDS, which was mentioned above. Only in the second case, the provisions of such a "contract" apply not only to the parties to the contract, but to the entire national information network, which involves not only the life and activity of thousands and millions of users, but also a change in their composition. Of course, this requires a very strong legal framework.
The functioning of the second device is based on a number of legal acts. Any of them governs one or more aspects of the relationship between the parties to the transaction when they use electronic document management using EDS:

• article 160 of the Civil Code of the Russian Federation, which allows you to sign contracts not only with your own handwritten signature, but also with any other signature provided for by law or by agreement of the parties (in particular, electronic);
• the principle "On information, information technologies and information protection" specifies a number of basic terms, such as "information", "electronic message", "electronic document", etc.
• the principle "On EDS" determines under what conditions an EDS on an electronic document is recognized as equivalent to a handwritten signature, and describes the mechanism for implementing the operation of an EDS in a public information network.

In order to determine whether electronic papers signed with an EDS are legally protected today, and therefore whether they are legally significant, it is necessary to analyze 2 aspects of this issue: the legal significance of an EDS and the legal significance of an electronic document.
As you can see, the EDS is issued by a certification authority (CA). The principle "On EDS" involves the registration of all CAs in a single state register, and the functioning of the "authorized federal body (AFO)" as the holder of the register of all CAs. Only a CA registered in the Ural Federal District can issue a certificate of such an EDS, which is the equivalent of a handwritten signature.

Today there is a register, the holder of which is UFO1 (the ministry did not come up with a new name for it, for this reason it is called the Authorized Federal Body). In addition, there is a root CA, made on the basis of the All-Russian State Information Center (OGIC)

2. The registry and root CA are managed by the Information Technology Agency under the Ministry of Communications and Mass Communications of the Russian Federation. Those. in fact, all the necessary technical base for the implementation of the provisions described in the law "On EDS" is ready for today. In addition, this technical base is fixed by regulations, for example, Order No. 33 specifies that a unified register of certificates is created precisely in accordance with the law "On EDS".
Now any organization that performs the functions of a CA can obtain a certificate from the root CA of the OGIC (subject to specific scientific requirements) and register it in the register of the Ural Federal District. If there is such a certificate certified by the root CA, the organization will be able to make and issue its own certificates, which will comply with the provisions of the law "On EDS" regarding the implementation of EDS on a public information network. Those. in fact, an EDS affixed to a document using a certificate issued by a CA registered with the OGIC should be regarded as an analogue of the certificate holder's handwritten signature.
Although, the EDS itself, of course, does not represent a special value. EDS functions can be implemented only when it is used as a requisite of an electronic document. Therefore, you need to understand that this is an electronic document. And what normative acts provide (or do not provide) its legal significance.
The principle "On EDS" indicates that an EDS is the equivalent of a handwritten signature if it is placed on an electronic document, which seems logical enough. The same principle defines an electronic document as "a document in which information is presented in electronic digital form".

Such a wording seems to be free enough to make and use electronic papers of each format. Although, the main normative act regulating the use of electronic documents is principle No. 149 "On information, information technologies and information protection". This principle, first of all, introduces the concept of an electronic message into the practice of Russian legislation: an electronic message is information transmitted or received by a user of an information and telecommunication network.

Thus, principle No. 149 separates the concepts of an electronic document and an electronic message. The differences between these 2 concepts are discussed in article 11. law. Including, item 3. indicates that only this electronic message signed with an EDS, the electronic form of which is not excluded by law, can be considered an electronic document. In other words, if the normative act clearly states that a specific document is required to be drawn up on paper, then this document, drawn up in electronic form and signed with an EDS, will only be a copy of the paper document and will not have any legal force.
In other matters, paragraph 4 of the same article separately contains clarifications in the share of "concluding civil law contracts or formalizing other legal relations." In accordance with this paragraph, electronic messages signed with an EDS, created and used in order to establish the above relations, are recognized as electronic documents. In other words, in the case of the conclusion of contracts, execution of invoices and acts in electronic form, those will be recognized as electronic documents on the basis of the above article of law No. 149.

Thus, now in the Russian Federation there is a necessary normative base for the functioning of a legally significant electronic document management on the basis of an EDS, applicable when formalizing legal relations.

Practical use of legally significant workflow based on EDS

The transition from the generally accepted (paper) document flow to electronic in the context of the interaction of 2 or a certain number of organizations makes economic sense, provided that a much larger part of all documentation is transferred to electronic form (65-75 percent, there are other estimates). In other words, to conclude contracts in electronic form, however, to continue to draw primary other and accounting papers in paper form is of little use, because. a slight reduction in the volume of paper workflow then will not provide significant benefits compared to the costs of introducing new processes.
The practice of document management in commercial organizations in the Russian Federation is such that most of documents are drawn up not only for the purpose of certifying legal relations, but also for taxation purposes. Let's try to consider this issue from the standpoint of 2 types of accounting practiced by any commercial organization in the Russian Federation: accounting and tax. Despite the fact that acts on the work performed, invoices and papers of equal importance to them for accounting are called primary accounting documents by the law "On Accounting", they are also used for tax accounting. Of course, not to mention that the document is counted twice. Rather, the document is primarily taken into account in accounting, and after that, accounting registers are used to maintain tax accounting. One way or another, for the purposes of proving the correctness of the calculation of the tax base, the Federal Tax Service constantly requires primary papers. FROM accounting there are no problems: it reflects the facts of economic activity, and economic activity is conducted on the basis of legal relations m / y by economic entities. Consequently, any electronic document permitted by civil law, which determines any nature of legal relations between m / u organizations, must be recognized in accounting. A somewhat different situation with tax accounting. Tax accounting is conducted only for the purpose of correct calculation and payment of taxes, and control over this process. The procedure for maintaining tax records is regulated not by civil, but by tax legislation.
After a brief review of tax legislation, it is possible to establish that, in the general case, the Tax Code of the Russian Federation directly prescribes tax accounting on the basis of primary accounting documents, without imposing any special requirements on these documents. The same is proved by the letter of the Ministry of Finance No. 03-02-07 / 1-383 of 09/30/2008. The exception is documentation related to VAT accounting. Article 169 of the Tax Code of the Russian Federation involves the preparation of an invoice. Taking into account that in civil law this document is not mentioned, it is a specific tax document, and its execution is regulated by tax legislation. Tax legislation does not regulate the form of an invoice. So, the question arises: will the Federal Tax Service of the Russian Federation accept an electronic invoice for the purposes of tax accounting and, as a result, for the purposes of calculating VAT? The Federal Tax Service itself does not yet give an answer to this question. If the Federal Tax Service answers this question in the negative, this means that all invoices must continue to be issued on paper.
How significant is the share of invoices in the total volume of documents? If we consider a simple set of documents for one transaction, we get a similar set:
1. Contract.
2. An act of work performed or an invoice for the supply of material assets.
3. Invoice.
Thus, in general, in organizations reporting on VAT (the majority of all organizations in the Russian Federation), the volume of invoices is at least 1/3 of all mandatory documents.
One way or another, it should be noted that in the letter mentioned above, the Federal Tax Service promises to deal with this issue very soon and give a clear answer: it is possible or impossible to take into account an electronic invoice. Also, taking into account the government's course towards the introduction of electronic document management within all government agencies and departments, and the promise to start providing public services in electronic form since 2010, it makes sense to expect that the issue will be resolved in favor of an electronic invoice.
An example with an invoice is by no means the only one. There are also a lot of special documents, the form of which is regulated by separate sections of the legislation of the Russian Federation. Moreover, one should not forget about international transactions, in which certain provisions of the Law "On EDS" and Law No. 149, and national laws of other states in the field of electronic document management, must be taken into account.

conclusions

Summarizing the above material, we can conclude that today in the Russian Federation there is the necessary regulatory framework for the functioning of a legally significant electronic document management system based on an EDS, applicable in the formalization of legal relations, although for the purposes of the practical use of electronic document management (and, therefore, deriving advantages from it) it should be borne in mind that there is no legally fixed electronic form for some special documents. In my opinion, despite the restrictions mentioned above, in a number of sectors of the Russian economy, the current situation creates quite favorable conditions for the introduction of electronic document management systems based on EDS in order to formalize legal relations among economic entities.

New information is out!

On May 12, the Order of the Federal Tax Service of Russia dated March 5, 2012 was published, which approved the formats of electronic invoices, books of purchases and sales, and a register of issued and received invoices. The order comes into force 10 days after publication.
According to the legislation, it is possible to exchange electronic invoices in accordance with the procedure approved by the order of the Federal Tax Service, in the established formats, through specialized operators of electronic document management, whose activities are also regulated by the order of the tax department. To date, all these orders have been published and have either already entered into force, or will come into force earlier than in two weeks. It will be possible to issue a legally significant electronic invoice already on May 23.

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