Electronic form
In the legal system , the electronic form is a formal requirement that replaces the written form in legal transactions by means of electronic data exchange , insofar as this is permitted by law.
General
For freedom of contract also includes the principle of freedom of form , the delivery of declarations of intent allows and the conclusion of transactions in no particular form. Therefore, even verbally , by sign language ( handshake , nod ) and even tacitly concluded contracts generally effective. This general freedom of form facilitates and accelerates right-hand traffic, especially in mass transactions in everyday life ( buying in the supermarket ).
In December 2016, the dismissed Administrative Law of the Federal 3000 legislation on where the writing was ordered. However, under federal administrative law, the written form in the sense of a signed declaration is no longer required in every case. In many cases, simple electronic methods such as sending an electronic document with e-mail are sufficient as an electronic replacement. In the opinion of the Federal Government, it was possible to dispense with the order in writing from a total of 586 federal legal provisions, so that they were either deleted without replacement in these legal provisions or that the simplest possible electronic procedures could be permitted in their place. According to the Federal Government's report, 103 legal provisions were waived; electronic procedures could be used for 483 legal provisions.
In April 2017, the law on the abolition of dispensable orders in writing came into force in federal administrative law , with which the electronic form was approved as a permissible form of declaration in 182 laws and ordinances.
Legal issues
With its electronic form, the legislature recognized the Internet as a modern means of communication in legal transactions in July 2001 .
The electronic form is possible, for example, when entering or deleting in public registers, for example in the commercial register ( § 8a HGB ), company register ( § 8b HGB) or in the land register ( heritable building land register , housing land register and partial ownership land register ). Since January 2007 the commercial register has been kept completely electronically. Both the transmission and submission of applications for registration EGVP as well as information about the content of the entries and the stored documents are carried out by means of electronic information and communication systems ( e-justice ). In the land register law , § 12 GBO is applicable to the electronic form; the EDP land register replaces the previous paper land register according to § 133 GBO. An entry becomes effective in accordance with Section 129 (1) GBO as soon as it is recorded in the data memory intended for the land register entries and can be reproduced in a legible form with unchanged content over the long term. According to Section 87a (3 ) AO , the written form in tax law can also be replaced by an electronic form .
In general, the written form can only be replaced by the electronic form if the contracting parties agree. The electronic form is excluded, for example in the case of part-time housing rights contracts ( Section 484 (1) BGB), consumer loan contracts ( Section 492 (1) BGB), termination of an employment relationship ( Section 623 BGB), life annuity promises ( Section 761 sentence 2 BGB), the guarantee ( § 766 sentence 2 BGB), promises of debt ( § 780 sentence 2 BGB) or acknowledgment of debt ( § 781 sentence 2 BGB) and in vocational training contracts ( § 11 paragraph 1 BBiG)
application
Where the written form can be replaced by electronic form, the latter collides with the protection against haste, for which the written form was created, among other things. In addition, the declaring person relinquishes his right of withdrawal from Section 130 (1) sentence 2 BGB.
If the electronic form is to take the place of the written form, an electronic document must be created for the content of the legal transaction , to which the name of the exhibitor must be added and which must be provided with a qualified electronic signature (Section 126a (1) BGB). Electronic signatures are data in electronic form that are added to or logically linked to other electronic data and that the signatory uses to sign . The qualified electronic signature must be based on a qualified certificate ( Section 12 (1) VDG ) that was valid at the time it was generated and must be generated with a secure signature creation unit ( Section 2 No. 3 SigG old version). Qualified electronic signature is an advanced electronic signature that has been created by a qualified electronic signature creation device and is based on a qualified certificate for electronic signatures. Qualified electronic signatures enjoy the appearance of authenticity ( § 371a ZPO ).
In the case of a contract , the contracting parties must each electronically sign an identical document (Section 126a (2) BGB).
International
One of the objectives of Regulation (EU) No. 910/2014 of July 23, 2014 is to remove existing obstacles to the cross-border use of electronic identification means that at least enable authentication for public services in the EU member states . Art. 6 of this ordinance stipulates the mutual recognition of electronic identification.
In Austria , according to Section 4 (3) ÖSigG, electronic documents with a secure electronic signature are presumed to be authentic, analogous to Section 294 ÖZPO. The secure electronic signature fulfills the legal requirement of the written form according to § 886 ABGB . The citizen card with electronic signature is a combination of an official electronic ID (a SmartCard , usually the e-card , commonly called the “citizen card”) or the mobile phone (as a mobile phone signature ) and a digital certificate . It is used particularly in e-government (in electronic administrative procedures), but also in economic processes as an equivalent to a handwritten signature and is equivalent to this as a qualified electronic signature.
The Switzerland knows the electronic and advanced electronic signature , set out in Art. 2 Federal Law on Electronic Signature ( ZertES ) from March 18, 2016 and by Regulation on certification services in the field of electronic signature ( VZertES ). These may be offered by certification services that have been recognized in accordance with Art. 3 ZertES and registered by an accreditation body . In Art. 14 para. 2 OR and Art. 59a OR equality between ZertES-compliant electronic signatures and handwritten signature in the field of legal procedural requirements and the liability of the owner of the signing of the careful handling of the key is provided.
In the UK the continued Electronic Communications Act of 2000 of 13 December 1999 to the European Directive EC / 99/93 with an electronic signature ( English electronic signature is) is provided which is attached to an electronic statement or electronic data. The digital signature has the same status as a handwritten signature, although some documents still require a handwritten signature (such as land purchase agreements ).
Individual evidence
- ↑ BT-Drs. 18/11007 of January 25, 2017, draft of a law to reduce dispensable orders in writing in federal administrative law , p. 1
- ↑ BT-Drs. 18/11007 of January 25, 2017, draft of a law to dismantle dispensable orders in written form in federal administrative law , p. 2
- ↑ Law on the dismantling of dispensable orders in writing in federal administrative law - text, reasons and amendments
- ↑ Otto Palandt / Jürgen Ellenberger , BGB Commentary , 73rd edition, 2014, § 126a marginal no. 6th
- ↑ Otto Palandt / Jürgen Ellenberger, BGB Commentary , 73rd edition, 2014, § 126a marginal no. 2
- ^ Alpmann Brockhaus, Fachlexikon Recht , 2005, p. 423 f.
