전자화문서와 원본제출주의

• 영문명: The Legality of Digital Image Copies of Paper Records and Original Writing Rule
• 발행기관: 한국민사소송법학회
• 저자명: 권혁심(Kweon, Hyukshim)
• 간행물 정보: 『민사소송』제19권 제1호, 63~103쪽, 전체 41쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2015.05.30

영문 초록

The wide availability of “Electronic Imaging Systems(EIS)” is proof that they have gained wide acceptance in a marketplace which has been rapidly changing from traditional paper-based transactions to E-Commerce all over the world. In Korea, the legal system has yet to properly address the enforceability of records and information maintained by EIS. This article reviews the history of EIS in the U.S. from when it was first developed several decades ago as well as its active use in both the public and private sector in Korea more recently. It also discusses the legality of digitized document(digital image copies) according to the ｢Act on Electronic Document and Transactions｣, and evidential issues on digitized documents in the process of the ｢Civil Procedure Law｣ and the ｢Electronic Filing Procedures for Civil Cases｣. In Korea, the Civil Procedure Law and the Court have a clear position on the original writing rule in regard to the taking of evidence if a dispute on written content aries among two or more parties. Namely, the ‘original’ is usually the first document prepared and, the first signed draft, both of which permit a narrow definition of ‘certified original.’ Furthermore, the Civil Procedure Law and the Court also developed a fairly narrow definition of duplicate, namely that content is not admissible as original if the content of a writing is in dispute. In this light, an original digital image copy is admissible as a duplicate, not as original. Therefore any individual or corporate entity who has cause to expect civil action in the future shall preserve all paper documents and digital image copies for the purpose of offering evidence and evading risk. The results in both a heavy burden and inefficiency, thus incurring a negative effect on the entire economy. In 1996, UNCITRAL prepared a Model Law to remove any legal barriers and facilitate electronic commerce around the world. The most basic and fundamental issue of e-commerce transactions is enforceability among countries having different legal systems and traditions. Enforceability is focused on the concept of originality among various legal barriers in substantive and procedure law. In particular, the concept of original in procedure law comes from FRE 1001-1008 in the United States. The method of complying with the best evidence rule is by offering an original which is now defined as the writing or record itself or any counterpart intended to have the same effect by the person who executed or issued it. FRE 1003 also accepts a duplicate as admissible to the same extent as an original unless a genuine question is raised about the original. From the point of view of legal judgment on a fact, what is most important is the integrity of information, not whether something is original, as far as it accurately reflects the information set forth in the record and remains accessible for later reference to the factfinders. Also based on the FRE, UPA and IRS authorize the destruction of original paper records that have been copied. In conclusion, as long as it is produced by a certified EIS, any digitized document should be considered as original in consideration of the technical developments which reproduce the information of the original accurately and remain accessible to a judge. In such a case, the admissibility of the digitized document has the same effect as of the original. Such legality of the digitized document will influence any organization to preserve and dispose of original paper document reasonably.

목차

Ⅰ. 서론

Ⅱ. 기록매체 변환의 연혁

Ⅲ. 전자화문서의 법적 지위

Ⅳ. 전자화문서에 관련된 국제규범

Ⅴ. 전자화문서의 폐기 법안 마련의 문제

Ⅵ. 결론

참고문헌

키워드

전자화문서 원본제출원칙 전자화문서의 법적 성질 원본문서의 처리 사본의 증거능력 차별금지와 기능적 등가 접근방법 Digital image copies, Digitized document Original writing rule Legality of digital image copies Disposition of paper record Admissibility of duplicate Nondiscrimination and Functional-Equivalent Approach