E-Justice (Germany)

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Under e-Justice and e-Justice (English electronic justice ; and electronic legal transactions ) refers to the use of IT procedures within the judiciary and between institutions of the judiciary, public administration and individuals. E-justice is part of e-government . The term “eJustice” is vague and can only be used as a generic term, sometimes also as a catchphrase. Ultimately, he describes the efforts of the judiciary as the third state power to achieve fully electronic communication and file management. Ultimately, it is a collective term for individual aspects of the use of information technology in the execution of judicial tasks. In addition to the individual production of "eJustice", such as electronic communication or electronic file management, cross-sectional tasks and basic issues such as work organization in the digital "workflow", IT security or data protection must be counted as "eJustice" in the broadest sense. Incidentally, "eJustice" processes may not only be viewed from a judicial point of view or only from a legal or administrative point of view, but also always across the board in order to achieve the greatest possible common benefit in the interests of the citizen seeking law. This includes, for example, very extensive efforts to formalize and structure justice communication.

Electronic communication

A distinction must be made between communication that has to meet certain formal legal requirements and other, informal communication.

Form-based communication

In Germany, the individual procedural rules have already been changed by the “ Act to Adapt the Formal Requirements of Private Law and Other Regulations to Modern Legal Relations ” of July 13, 2001, thus laying the foundation for formal e-justice. In the meantime, the law for the promotion of electronic legal transactions with the courts has made further steps towards the partially mandatory introduction of electronic communication with the courts into law. In the case of formal communication, there is a further subdivision between communication from the legal practitioner to the court (judicial incoming mail) and communication from the court to the legal practitioner (judicial outgoing mail or electronic delivery right).

Formal communication to the court (judicial inbox)

Citizens and lawyers can also submit their pleadings and other declarations to the competent court in electronic form. Subsequent submission on paper is then not necessary. However, electronic communication with the individual court must still be permitted by a special statutory order. As of January 1, 2018, this rule-exception relationship will be reversed. The electronic legal communication is then opened by law for all German courts. The details of the communication, in particular the permitted file formats, are then regulated by the Electronic Legal Transactions Ordinance - ERVV .

According to § 130a ZPO (in the version from 01/01/2018; the same applies to § 65a SGG, § 55a VwGO and § 52a FGO), electronic documents can be sent via the electronic court and administrative mailbox (EGVP) or a secure transmission channel in accordance with. Section 130a (4) of the Code of Civil Procedure must be submitted to the court. According to its wording, the regulation explicitly refers not only to documents that must be in writing, but to all submissions (information, statements, reports, translations and statements by third parties to be submitted in writing).

While a qualified electronic signature (qeS) is always required when submitting via the EGVP (Para. 3 1st Var.), Submissions from a secure transmission channel can be made in accordance with § 130a ZPO, the attachment of a qeS can be dispensed with; then a simple signature is sufficient (e.g. the machine-written signature or a scanned signature).

The use of a secure means of transmission makes it necessary that the person responsible for the pleading (e.g. the lawyer who is capable of postulation) carries out the transmission process.

In both cases, the submission must be made using one of the statutory instruments in accordance with Section 130a, Paragraph 2, Clause 2 of the German Code of Civil Procedure (ZPO). According to § 2 ERVV, a searchable (i.e. text-recognized) PDF file is generally permitted as a file format. If a proper conversion to PDF is not possible, an image file in TIFF format can also be sent (in addition to the PDF file).

The receiving facility of the court is always referred to as an electronic court mailbox. An automatically generated response confirms receipt of the document by the court.

The acceptance by the users of the law, especially lawyers, also causes problems. You are unsettled by the multitude of requirements and practical problems associated with the use of e-justice. The manufacturers of legal software are also extremely reluctant to implement electronic legal transactions in their products. Sometimes the courts also require prior registration for their service. So far, only electronic legal communication at the Federal Court of Justice (BGH) has been somewhat successful . This is due, on the one hand, to the early start of the project in November 2001 and, on the other hand, to the already low number of lawyers admitted to the Federal Court of Justice (only 31 lawyers in all, of which a single-digit number of lawyers constantly submit electronic pleadings to the BGH).

Practical problems with the submission of electronic documents to courts have so far (as far as can be seen) no corresponding procedural resolutions or decisions. The scientific penetration of the topic also leaves a lot to be desired. Due to the unclear wording of the law, it has so far been mainly controversial whether an electronic signature can be used to ensure the authenticity and integrity of the document.

Formal communication from the court (outgoing mail from the court / electronic delivery right)

The judicial electronic outgoing mail is based on Section 174 (3) ZPO. To those involved in the procedure to whom Section 174 (1) ZPO can be served by acknowledgment of receipt, and the court can send documents in digital form to those who have expressly consented to electronic delivery. Here, the court is on the gem. § 130a ZPO restricted transmission channels.

Where no formal delivery is required, however, there is nothing against the application of Section 174 (3) ZPO accordingly, on the one hand, and the use of the permitted transmission channels as well as other existing transmission channels (in particular the EGVP) as long as the requirements of data protection and IT Security are guaranteed.

Deadlines

Deliveries are made in electronic legal communication in accordance with Section 174 (3) ZPO always (only) against acknowledgment of receipt. Certificates of delivery still require the postal route. An electronic delivery document is currently not provided for in electronic legal transactions. The beginning of the period is therefore - as in the analog world - from the so-called "voluntative element" of the acknowledgment of receipt, i. H. depends on the time at which the document was taken. So it can be controlled at will. The delivery "against acknowledgment of receipt" according to Section 174 ZPO presupposes - in addition to the sender's intention to deliver - that there is an actual acknowledgment of receipt. The addressee must therefore (not only) be aware of the receipt of the document, but also decide whether he considers it to have been served. The expression of the will to accept the document (readiness to receive) is - in contrast to, for example, service by the bailiff - a mandatory requirement for effective service. The procedural law itself does not oblige the lawyer to return the EB. If the lawyer does not accept a document that has come into his sphere of influence or if he even rejects its disclosure by post with acknowledgment of receipt, it will not be served and a deadline will not be set. Only when he accepts the announcement as service - which, however, does not require knowledge of the content of the document - can a period begin. If the return is not made for no reason, it cannot be enforced under procedural law. The return of the acknowledgment of receipt is an act of will with regard to which there is only a legal obligation to cooperate under professional law.

The electronic receipt (eEB)

According to Section 174 (4), sentences 3 - 5 ZPO, the electronic acknowledgment of receipt (eEB) serves as proof of electronic delivery from January 1, 2018. The recipient of the delivery must transmit it in a structured, machine-readable form. A structured data record made available by the court with the service must be used for this. The structure of this data record, the so-called schema, is provided by the xJustiz specialist module XJustiz.EBB, which is presented in more detail below. Proof of delivery in electronic legal transactions by means of a "conventional acknowledgment of receipt" is no longer provided from January 1, 2018.

Difference between conventional and electronic transmission / so-called "acknowledgment file"

However, there is a difference between postal delivery and delivery by fax or EGVP in the visibility of the actual time of receipt. In the case of postal delivery, the actual time of receipt (with the exception of sending by registered mail with acknowledgment of receipt) cannot be identified. When sending a fax, the time of sending is documented in the sending log - but this does not prove receipt; this may still not be done due to a defect on the other side (paper jam, empty toner, etc.) or the sending to the wrong remote station.

When sending electronically via EGVP, however, the exact point in time can still be determined afterwards - to the second - in addition, the electronic document has been received within the control of the recipient. This sphere of influence is ultimately a server - the so-called intermediary - on which the transmitted files are stored by the sender in an encrypted (OSCI) message container and then picked up by the recipient without prior decryption. Upon receipt at the intermediary, the sender receives an automatic confirmation of receipt, which identifies the sender, the recipient, the subject and - to the second - the end of the reception process on the intermediary (so-called "acknowledgment file")

Informal communication

Documents or messages that do not create any rights or obligations can usually be communicated informally. Appointments and the like fall into this category. For reasons of data protection law, communication by means of unencrypted e-mail is also prohibited. In practice, only the transmission channels of § 130a ZPO (EGVP or the secure transmission channels) are used in informal communication.

Dunning notices

In a small, practical but very important sub-area of e-justice, there have been functional electronic procedures since around 1980.

It concerns the dunning procedure according to § 688 ff. ZPO . This procedure for asserting claims for cash payments is already standardized in paper form by means of forms and is largely processed automatically in courts.

In addition, anyone can apply for payment orders online (“barcode procedure”).

Since an amendment to Section 690 (3) ZPO on December 1, 2008, lawyers are no longer allowed to apply for payment orders using paper-based forms, but can only submit these applications electronically. In addition to the barcode procedure , this is possible through interfaces between the lawyer software used and the electronic court and administrative mailbox (EGVP).

The EGVP is a kind of e-mail program for technically and legally reliable communication with courts and authorities. The signature is replaced by a certified signature card and personal identification number ( electronic signature ). When transmitting via EGVP, the OSCI protocol ensures encrypted and reliable transmission.

commercial register

The commercial register has been kept electronically since 2007 in accordance with an EC directive . The §§ 8 to 12 German Commercial Code and the HRV describe the legal requirements and technical details of the electronic workflow for this required electronic information and communication systems:

Acceptance of the registrations and other electronic documents digitized, signed and electronically transmitted by the notaries ;
Collection of the master data relevant for the entry ;
Registration and disclosure of the facts;
Online information on the content of the entries and the documents submitted to the commercial register.

Uploads for the purpose of entry in the commercial register are made electronically using EGVP in accordance with Section 12 of the German Commercial Code .

Internal judicial processes

The area of communication described so far is only one aspect of e-justice. Within the judiciary, e-justice also includes, in particular, electronic file management with the subsequent problems of long-term archiving of electronic files. If courts, authorities or law firms do not simply print out the electronic inboxes, but process them electronically in parallel, this is referred to as an "electronic business process". This includes keeping the electronic document available for a later - also electronic if possible - sending process to a third party, the opposing party or the client and also the further processing of the document itself, so that it is stored and used further; For example in an electronic file, for copying out text passages or for use in structuring tools.

Basics of keeping electronic court records

The judicial process regulations do not contain any coherent regulations on the keeping of process files in the courts. The management of such is assumed as a matter of course, e.g. § 299 ZPO. However, the federal states specify the details of filing in file regulations (AktO), which are issued as administrative regulations.

The management of electronic process files has been possible since the Justice Communication Act from 2005, e.g. § 298a ZPO. The introduction takes place through a federal or state law regulation. Electronic filing can be limited to individual courts. So far, the federal states have only made use of this option in very few pilot courts.

The file regulations of the federal and state governments are currently still geared towards keeping paper files. A comprehensive revision will be a prerequisite for a successful, particularly efficient, nationwide introduction.

Electronic double file

If - for example, due to the almost exclusive use of electronic communication channels - the files are available electronically in the computer in addition to the (binding) paper form, this is referred to as an "electronic double or eDuplo file".

Ultimately, it is a legally irrelevant tool for the processor with which he can use the so-called "added value" of electronic transaction processing without making the investments that are necessary to completely dispense with a paper file.

It is necessary, however, that the electronic double file also meets the requirements for secure data storage, in particular that it is protected from unauthorized changes, otherwise it becomes worthless because you cannot rely on its content. In addition, the electronic double file is of course subject to data protection. For each electronic duplicate file, it must therefore be ensured that it is protected against third-party knowledge and that - in accordance with the principle of data economy - a deletion concept is in place so that data is not kept in reserve as duplicates of possibly already destroyed paper originals. The electronic duplicate must also be destroyed at the latest when the statutory retention requirements for the paper file have expired.

Leading electronic court records

Ultimately, the term “leading electronic file” describes a workplace situation in which the paper file either no longer exists or is no longer binding and therefore no longer reliably complete. The electronic file is now legally binding. In practice, leading electronic files are currently only being introduced at individual courts in pilot projects. Due to the massive amount of electronic communication with the courts in the meantime and the obligations to electronic communication through the eJustice Act of 2013 from January 1, 2022 at the latest, the development towards electronic file management is practically inevitable - despite some resistance. The electronic court file will therefore be introduced by law in all branches of the court by January 1, 2026 at the latest. The previously voluntary and hardly implemented option to introduce the e-file is then mandatory. This is determined by the law on the introduction of electronic files in the judiciary and the further promotion of electronic legal transactions .