Electronic right-hand traffic (Germany)

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The articles on electronic legal traffic (Germany) and e-justice (Germany) thematically overlap. Help me to better differentiate or merge the articles (→  instructions ) . To do this, take part in the relevant redundancy discussion . Please remove this module only after the redundancy has been completely processed and do not forget to include the relevant entry on the redundancy discussion page{{ Done | 1 = ~~~~}}to mark. Discostu  ( Disk ) 13:29, Nov. 27, 2019 (CET)

Electronic legal communication is the legally binding electronic transmission of process declarations and other documents in judicial and public prosecution proceedings that can be safely attributed to a declaring party in accordance with legal and technical rules . The legal rules governing electronic legal communication require the use of technical systems that ensure that the transmission is unchanged and unadulterated ( integrity ), that the specified sender is the real one ( authenticity ) and that no unauthorized person can gain knowledge of the content of the declaration (confidentiality). These guarantees are Ensures this by using developed for use by the laws of the Federal and the countries of prescribed systems with encryption technology and making use of the qualified electronic signature which in each shipment when, exhibitors will be checked the signature for authenticity and validity: The writing of § 126 BGB is replaced in the figurative sense of electronic legal transactions by a procedure in which not only the identity card of the declaring person is presented, but is also checked for authenticity and validity at the issuing authority.

Legal bases

Signature right

In order to meet the requirements outlined in the definition, simpler, more secure systems are required until the development and approval process, e.g. B. with biometric identification technology, according to the law of a qualified electronic signature. In practice, the declarations are also encrypted.

The right of electronic signature is regulated in the Signature Act (Federal Law Gazette I 1997, p. 1870, as amended by Federal Law Gazette I 2001, p. 876), which implements the European Signature Directive. The signature right knows different levels of signatures: The simplest form is the electronic signature. It already exists when, for example, a signature is scanned into a computer fax or even when the name is typed in under an electronic declaration. A simple electronic signature is not the same as a signature. The so-called advanced signature, which is based on a certificate issued by an authorized issuer, does not meet the requirements for electronic legal transactions either. Only the qualified electronic signature is sufficient for this according to the legal regulations. In simplified terms, it works according to the following principle: The signature holder is assigned an individual key pair, consisting of a public and a private key. The recipient uses a mathematical checksum procedure to ensure that the signature was generated by the owner of the correlating key and that the text has remained unchanged. The owner of the key pair used and the issuer of the document cannot be identified by the signature alone. This is the task of a trustworthy third person, the issuer of the signature (“trust center”), who issues so-called certificates.

According to the law, a qualified electronic signature is present if the signature is based on a certificate that was valid at the time it was created and is created with a secure signature creation unit ( Section 2 No. 3 in conjunction with No. 2 Signature Act). A certificate from a so-called certification service provider (trust center) enables the signatory to be identified by assigning the signature to a person ( § 2 No. 9 Signature Act). According to current law, qualified electronic signatures can only ever be assigned to a natural person as the signature key holder. It is therefore not possible to assign an electronic signature to a lawyer's office as such, a company, an authority or any other organization, which is quite impractical in practice: The signature replaces the handwritten signature of a natural person, no more and no less. It is technically possible to assign certain additional additions to the name (attributes), which is currently only implemented for notary status. It would be desirable to create attributes for lawyers or the affiliation to a specific judicial authority to be named or even a kind of “electronic official seal” that only identifies the authority. In practice, signing works like this: The user receives a signature card which he has to insert into a software-controlled reader to sign and activate by entering a personal identification number (PIN). This ensures the identity of the signer and the authenticity of the content of the document. This means that technically and legally a procedure is available that the legislature equates to the written form. Section 126a BGB regulates the electronic form: The legally required written form is legally replaced by the electronic form if the issuer adds his name to the declaration and has provided the electronic document with a qualified electronic signature in accordance with the Signature Act. The electronic form is therefore legally a special case of the written form. Their scope basically corresponds to that of the written form.

Procedural law

Electronic legal communication with the courts and public prosecutor's offices in Germany is generally regulated in the respective procedural rules. Since the procedural rules have so far been based on paper , they had to be changed in order to create the framework for electronic legal transactions. The first reform approaches have already been taken with the Delivery Reform Act (BGBl. I 2001, p. 1206), the Formalities Adjustment Act (BGBl. I 2001, p. 1542) and the 3rd Administrative Procedure Amendment Act (BGBl. 2002, p. 3322). The main changes were made with the Justice Communication Act (Federal Law Gazette I 2005, p. 837). The Justice Communication Act is an article law that essentially changes the rules of procedure in detail in order to enable electronic legal communication and exclusively electronic filing . This creates the basis for comprehensive electronic file processing. Since every code of procedure has its own particular features, the legislature was not satisfied with the creation of a single general clause: the rules of procedure were individually adapted.

For civil jurisdiction, the central provision is Section 130a of the ZPO , which was already inserted with the Form Regulation Adjustment Act . Section 130a (1) ZPO reads: "If the written form is required for preparatory written submissions and their annexes, for applications and statements by the parties, as well as for information, statements, expert opinions and statements by third parties, this form of recording as an electronic document is sufficient if this is for the processing by the court is appropriate. The responsible person should provide the document with a qualified electronic signature in accordance with the Signature Act. "

The law provides the qualified electronic signature as a rule for the electronic submission of an application. However, according to the legal formulation, it is only a so-called target provision. However, “should” does not mean “must”, so that the question arises whether a lawsuit cannot be effectively filed electronically without having been provided with a qualified signature. In Bundestag printed paper 14/4987, p. 13, it is expressly stated that the requirement of a qualified electronic signature according to the Signature Act based on Section 130 No. 6 ZPO is designed as a regulation (“should”). In the course of the legislative process ( declaration of the mediation committee given in the Federal Council for minutes) it was made clear that the should-wording in Section 130a (1) sentence 2 ZPO is to be interpreted as a mandatory provision as in Section 130 No. 6 ZPO (so now the BGH , decision of January 14, 2010, VII ZB 112/08). According to the overwhelming opinion, no effective application can be submitted electronically without a "signature" and thus without the qualified electronic signature. However, for the legal practice of the courts and judicial authorities, the following must be observed: Applications without a qualified electronic signature may not be rejected as ineffective from the outset - the decision on this is up to the judge or judicial officer responsible for the respective proceedings after the division of responsibilities . In anticipation of the case law presented below, a warning must be given against giving printouts of the documents in question in the course of business and treating them as files: There is then no longer any electronic legal communication, but it may be a legally valid written document. In view of the risk of missed deadlines and liability, the legal profession is not advised against any experiments - the qualified signed electronic document, submitted where it is authorized, has a high reliability guarantee and minimizes transmission risks, especially since the systems issue automated acknowledgments of receipt.

From a legal point of view, electronic legal transactions are left to the discretion of the federal states by the federal legislature: The Justice Communication Act, together with the regulations on electronic legal transactions, grants the federal government and the states an authorization to issue ordinances based on the respective area of ​​responsibility , which can be delegated to the ministers of justice. The basic provision of Section 130a, Paragraph 2 of the German Code of Civil Procedure (ZPO) contains the power to issue ordinances to the federal and state governments to determine the point in time from which electronic documents can be submitted to the courts and the form suitable for processing the documents . The approval of the electronic form can be restricted to individual courts or proceedings. Electronic legal communication can therefore be introduced flexibly, adapted to the technical possibilities and practical requirements. This concession to judicial policy - it is nothing more, because the technology has been available for use for some time - has ultimately proven to be an obstacle to the breakthrough in electronic legal traffic: As the next section will show, the federal states have so far only been right hesitantly made use of the legal options.

The approval of the electronic transmission of an application includes the annexes to applications, which can also be transmitted in electronic form. For this purpose, if they are not created electronically anyway, they are scanned in by the lawyer and transmitted electronically. In the case of electronic submission of applications, no copies need to be submitted later ( Section 133 (1) sentence 2 ZPO). If delivery is in paper form, which is currently the norm, the court creates the copies in order to give the applicant a financial incentive for electronic filing - it saves effort and costs. This is problematic for the judiciary in cases where there are a large number of parties involved in the proceedings. The State of Hesse has prescribed electronic filing for proceedings under the Investor Model Law at the Frankfurt Higher Regional Court (Section 1 Clause 2 of the Regulation on Electronic Legal Transactions at Hessian Courts and Public Prosecutors, GVBl. 2007, p. 699) to the plaintiffs of the Regional Court Not having to use paper to inform about the progress of the model proceedings in the remaining proceedings. You will receive the access code to a homepage set up especially for the sample procedure on the Internet, from which you can download and take note of the current written documents.

An application can then be submitted electronically, provided electronic legal communication is permitted and electronic mailboxes of the courts have been set up and legally determined for this purpose. According to Section 130a, Paragraph 3 of the German Code of Civil Procedure (ZPO), a document is submitted electronically in a legally effective manner as soon as it has been recorded by the court institution responsible for receiving it. However, an application can only be significant if it has been received by the other party. In the case of electronic dispatch, it depends on the time of storage and not of the later printout. The authorization to issue ordinances opens up the scope for action to legally determine the facility intended for reception. At the same time, there is the normative possibility of making a central server available for several courts , which is then “the facility of the court intended for reception”. Since centralization must not be to the detriment of the parties, the time of receipt does not depend on when the court downloads the document to its own data processing system .

With the approval of electronic applications, the law is not limited to the ZPO:

In all areas, electronic access must first be specifically opened by a statutory ordinance.

Since December 2008, Section 690 (3) sentence 2 ZPO (Federal Law Gazette I 2007, p. 2840) has provided a special legal feature for the submission of dunning applications: If the dunning application is submitted by a lawyer or a registered person according to Section 10 (1) p. 1 No. 1 of the Legal Services Act, it may only be transmitted to the dunning court in an approved machine-readable form - in addition to the transmission of approved data carriers and the so-called barcode application (which is not introduced in all countries), this is primarily the online dunning application via the electronic court and administrative mailbox.

In many areas of the jurisdiction of the judiciary in Germany, the legislature has basically opened up the possibility of submitting electronic applications. Whether the options are also practically available to the user of the law depends on whether and to what extent the statutory authorizations have been and are used.

The law on the promotion of electronic legal transactions with the courts of October 10, 2013 ( Federal Law Gazette I, p. 3786 ) makes electronic legal transactions for courts in the field of civil proceedings, in family proceedings and in most specialized jurisdictions effective from January 1, 2018 introduced a change to the code of civil procedure . Participation in electronic legal transactions is generally mandatory and applies gradually to the courts and professional litigants such as lawyers. The individual federal states can determine that the obligation occurs earlier (“opt-in”) or later (“opt-out”).

Admissibility of electronic legal communication in the courts and public prosecutor's offices of the federal and state governments

The following list (status: May 2011) gives an overview of the valid regulations on electronic legal transactions in Germany.

  • Federal Government: Ordinance on electronic legal communication at the Federal Court of Justice and Federal Patent Court ( Federal Law Gazette 2007 I p. 2130 ); Approval for ZPO proceedings, revision criminal matters (only for GBA), FGG, GBO, PatG, MarkenG, utility model law matters at the BGH, patent, utility model and trademark matters at the BPatG.
  • Federal Government: Ordinance on the introduction of electronic filing and the expansion of electronic legal transactions at the Patent Office, the Patent Court and the Federal Court of Justice ( Federal Law Gazette 2010 I p. 83 ); Approval of electronic filing and clarification of the need for a qualified electronic signature.
  • Federal Government: Ordinance on electronic legal transactions at the Federal Labor Court ( BGBl. 2006 I p. 519 ); Comprehensive approval by the BArbG.
  • Federal Government: Ordinance on electronic legal transactions at the Federal Social Court ( BGBl. 2006 I p. 3219 ); Comprehensive approval by the BSozG.
  • Federal Government: Ordinance on electronic legal transactions at the Federal Administrative Court and the Federal Fiscal Court ( BGBl. 2004 I p. 3091 ); comprehensive admission by both federal courts.
  • Baden-Württemberg: Ordinance of the JM on electronic legal communication GBl. 2006, p. 393, Annex in the version of VO GVBl. 2008, p. 405; Approval for register procedures, especially commercial registers at the responsible local courts as well as for civil procedures at the regional courts of Stuttgart and Freiburg.
  • Bavaria: Ordinance on electronic legal transactions and electronic procedures (E-Rechtsverkehrsverordnung - ERVV) GVBl. 2006, p. 1084; Authorization only for register procedures, especially commercial registers, at the competent local courts and at the Munich Higher Regional Court for matters relating to the electronic retrieval process in the land register and in the commercial register.
  • Brandenburg: Ordinance on electronic legal communication in the state of Brandenburg GVBl. II, p. 558, last amended by VO GVBl. II, p. 425; Approval in registration procedures, especially in the commercial register; Admission to all local and regional courts in civil proceedings and in the FGG complaint procedure as well as to all specialized courts (with the exception of the OVG Berlin-Brandenburg) including all labor courts.
  • Berlin: Ordinance on electronic legal communication with the judiciary GVBl. 2006, p. 1183 Admission at the local courts only for registration procedures at the AG Charlottenburg, in particular the commercial register; Comprehensive approval by the FG and the LSG Berlin-Brandenburg.
  • Bremen: Ordinance on electronic legal communication in the state of Bremen Brem. Journal of Laws of 2006, p. 548; Comprehensive approval of the elRV with the exception of the LSG.
  • Hamburg: Brief overview of the Internet announcement on electronic legal transactions in the state of Hamburg HmbGVBl. 2008, p. 51 (still up to date, as of 12/2016, see http://justiz.hamburg.de/erv-hamburg/1388218/elektronischer-rechtsverkehr/ ); Admission to the local courts only with the AG responsible for register procedures, especially the commercial register, and with the FG Hamburg
  • Hesse: Ordinance on electronic legal communication at Hessian courts and public prosecutors GVBl. 2007, p. 699 comprehensive approval of the elRV in all courts and public prosecutor's offices, including labor jurisdiction.
  • Mecklenburg-Western Pomerania: Ordinance on electronic legal transactions in Mecklenburg-Western Pomerania (ERVVO MV) GVBl. 2009, p. 53; Admission to the local courts only at the local courts responsible for register procedures, especially the commercial register.
  • Lower Saxony: Ordinance on electronic legal transactions in register matters (ERVVO register) Nds. GVBl. 2007, p. 134; Admission to the local courts only for register procedures, in particular the commercial register, with the responsible AGs; pilot based on VO GVBl. 2006, 247 in certain family matters of the AG Westerstede.
  • North Rhine-Westphalia: Ordinance on electronic register management and the jurisdiction of the local courts in North Rhine-Westphalia in register matters (Electronic Register Ordinance Local Courts - ERegister-VO) GVBl. NRW 2006, p. 606; Admission to the local courts only for the AGs responsible for register procedures, especially commercial registers; additionally based on VO GV 2005 NRW p. 693, amended by VO GVBl. 2008, p. 542 pilot in divorce proceedings at the Olpe group. Ordinance on electronic legal transactions at the labor courts in the state of North Rhine-Westphalia of May 2, 2013 (GV.NRW. P. 250), last amended by Regulation of May 15, 2014 (GV. NRW. P. 320): At the state labor courts Düsseldorf, Hamm and Cologne, the labor courts Aachen, Arnsberg, Bielefeld, Bocholt, Bochum, Bonn, Detmold, Dortmund, Duisburg, Düsseldorf, Essen, Gelsenkirchen, Hagen, Hamm, Herford, Herne, Iserlohn, Cologne, Krefeld, Minden, Mönchengladbach, Münster, Oberhausen, Paderborn, Rheine, Siegburg, Siegen, Solingen, Wesel and Wuppertal can submit electronic documents in all types of proceedings.
  • Rhineland-Palatinate: State ordinance on electronic legal transactions with the local courts responsible for keeping trade, cooperative and partnership registers in the version of the Amendment Ordinance GVBl. 2007, p. 94; Admission to the local courts only for register procedures, in particular the commercial register.
  • Rhineland-Palatinate: State ordinance on electronic legal transactions with specialist public law jurisdictions GVBl. 2008, p. 33; Approval for all proceedings in administrative, social and financial courts.
  • Saarland: Ordinance for electronic legal communication with courts and public prosecutors in Saarland, Official Journal 2006, p. 2237, last amended by the Ordinance of September 22, 2015, Official Journal p. 686; Admission to the local courts at the Saarbrücken AG responsible for register procedures, especially the commercial register, as well as the Saarland Higher Administrative Court and the Saarland Administrative Court for all procedures.
  • Saxony-Anhalt: Ordinance on electronic legal communication at the courts and public prosecutor's offices of the State of Saxony-Anhalt (ERVVO LSA) GVBl. 2007, p. 330, Annex in the version of VO GVBl. 2009, p. 44; Admission to the local courts only with the AG Stendal responsible for register procedures, especially the commercial register; Admission to the VG Magdeburg and the OVG.
  • Saxony: Saxon E-Justice Ordinance (SächsEJustizVO) in the version of the announcement of April 23, 2014 (SächsGVBl. P. 294), last amended by the ordinance of January 2, 2015 (SächsGVBl. P. 6); Electronic documents can be submitted to the following courts: Local courts of Aue, Auerbach, Bautzen, Borna, Chemnitz, Dippoldiswalde, Döbeln, Dresden, Eilenburg, Freiberg, Görlitz, Grimma, Hohenstein-Ernstthal, Hoyerswerda, Kamenz, Leipzig, Marienberg, Meißen, Pirna , Plauen, Riesa, Torgau, Weißwasser, Zittau, Zwickau, labor courts Bautzen, Chemnitz, Dresden, Leipzig, Zwickau, regional courts Chemnitz, Dresden, Görlitz, Leipzig, Zwickau, higher regional court Dresden, Saxon finance court, Saxon regional labor court, Saxon regional social court, Saxon higher administrative court, Social courts Chemnitz, Dresden, Leipzig, administrative courts Chemnitz, Dresden, Leipzig. ( Appendix 1 SächsEJustizVO )
  • Schleswig-Holstein: State ordinance on electronic legal communication with the courts and public prosecutors GVOBl. 2006, p. 361; Admission to the local courts only for register procedures, especially commercial registers, responsible AGs Flensburg, Kiel, Lübeck and Pinneberg; Approval for all labor justice procedures.
  • Thuringia: Thuringian Ordinance on Electronic Legal Transactions (ThprER-VOO) GVBl. 2006, p. 560; Admission only to the Jena AG responsible for register procedures, especially the commercial register.

In all federal states, ZPO dunning requests can be submitted online to the central dunning courts.

Problems and Supreme Court Jurisprudence

The use of electronic legal transactions can be approached in several ways: The isolated introduction of electronic legal transactions, which is detached from the legal or notary specialist application, takes place via the download of the software offered by the federal and state governments, usually the "electronic court and administrative mailbox" ( EGVP), which can be found at www.EGVP.de or www.justiz.de, the justice portal of the federal and state governments. The difficulty here lies on the one hand in possible incompatibilities with the environment found by the software on the office computer, which can lead to installation and operational problems. Help can be reached via a hotline. On the other hand, the inexperienced PC user will find it difficult to transfer files from the law firm's file directory to the message to be sent.

What all options have in common is the problem of the qualified electronic signature: According to federal and state regulations, however, messages in electronic legal transactions must be provided with the qualified electronic signature, which must be purchased on the market along with a certificate on a commercially available chip card ( Costs for three years of validity: approx. 130 € plus reader for approx. 50 €).

In the area of ​​signatures, the case law has made some practical decisions:

Submission to the BFH without a signature

The Federal Fiscal Court had to decide twice as to whether a definitive document received without a signature can be effective (BFH, judgment of October 26, 2006, VR 40/05, and decision of March 30, 2009, II B 168/08). In the first case, the transmission was via email, in the second via the EGVP, but without a signature. The BFH considered the transmission to be effective in both cases because the ordinance has so far failed to make the qualified electronic signature mandatory, as has been done in Section 52a (1) sentence 3 FGO since the Justice Communication Act in contrast to Section 77a FGO, which was valid until 2005 enables. Although reading the ordinance on electronic legal transactions at the Federal Administrative Court and at the Federal Fiscal Court, Federal Law Gazette I 2004, 3091 makes it easy to establish that the legislator did want to prescribe the qualified electronic signature, the BFH must be admitted that the ordinance is based on the 2004 cannot be based on the authorization basis issued in 2005. However, whether the ordinance actually needs to be changed is a question, the answer to which is determined by the problem, whether written form in the sense of a necessary handwritten signature is required for written submissions and applications: According to § 52a Paragraph 1 Sentence 3 FGO, the signature is mandatory to be prescribed for documents that are equivalent to a document to be signed in writing. In contrast to the decision from 2006, the BFH indicates in the guiding principle of the 2009 decision that it would apparently affirm this: It considers electronic transmission to the EGVP of the BFH to be "currently" permissible without a qualified electronic signature.

Transmission by email

The Federal Court of Justice has already dealt twice with the question of whether a written statement sent by email has been effectively received by the court (BGH, decision of July 15, 2008, X ZB 8/08, and decision of December 4, 2008, IX ZB 41/08; following the decision of July 15, 2008 also Brandenburg Higher Regional Court, judgment of November 27, 2008, 5 U 179/07). In the first case, a law firm sent a statement of appeal due to the failure of the fax as an original signed scan version (PDF), which was then received, printed out and saved by the court service staff on their own business e-mail account provided to the law firm the paper version has been put into business. In this decision, the BGH gives the impression that e-mailing is an easily permissible means of access to justice - be careful! The BGH correctly states that a signed, scanned and later printed document meets the requirements for the written form - this has been consistent since the Telegram case law of the Reichsgericht. If such a document is printed out and processed, it should indeed be regarded as having been received. The BGH does not problematize the question of whether the access route via the announced name account was also an access approved by the judicial administration and thus also authorized with a willingness to accept - after all, the employee of the service unit "hung up" the "mailbox" himself, in which she provided the address revealed. The second decision of the BGH dealt with the case that an e-mail with the pleading was received by the court shortly before the deadline, the fax shortly after the deadline. In this decision, the BGH makes it clear that the e-mail as such is clearly subject to the provision of Section 130a ZPO, i.e. - beyond the expression as in the first case - it is clearly a matter of electronic legal transactions that require specific approval by statutory order. Since e-mailing was not allowed (and no printout was brought into the course of business!), The BGH treated the access as ineffective. The second decision of the BGH puts the question of the effectiveness of submissions by e-mail in the right light: defining written submissions and applications may only be submitted electronically via the approved means. With the ordinances on electronic legal transactions, the federal and state governments have established legally defined electronic inbound channels for messages that must be in writing via the Internet and implicitly excluded "normal" e-mails as a permissible input channel from the Internet. The guiding principle of the second decision of the BGH is correct: "An electronic document (e-mail) does not preserve the written form required for definitive written submissions." In a more recent decision of January 14, 2010, VII ZB 112/08, the BGH mentions en passant again The submission by email - ignoring the dependency of the transmission route on the respective approval by the ordinances of the federal and state governments, but makes it clear that Section 130a, Paragraph 1, Clause 2 of the German Code of Civil Procedure (ZPO) is not just a regulatory requirement for definitive briefs acts: Documents submitted electronically must be provided with a qualified electronic signature.

Container or document signature

According to the regulation of § 126a BGB, which is fundamental for the electronic form, as well as the regulation of § 130a para. 1 ZPO, which is in principle decisive for the entire procedural law for the electronically effectively transmitted document , a 1: 1 replacement of the handwritten signature by the Accepting an electronic signature: This would consequently require the qualified signature of each individual transmitted file. Although this would appear sensible in terms of procedural law, in order to assign the electronic signature only to the documents originating from the “signatory”, this is impractical in everyday technical electronic legal transactions. The inbound system has so far checked each signature offered to it individually online at the signature issuer and its authorization with the Federal Network Agency. It is easy to imagine that a message that contains a large number of (identical) application documents requires an enormous amount of time and resources to check if each document is individually provided with the same signature. In an obiter dictum in its judgment of October 18, 2006, XI R 22/06, the Federal Fiscal Court assumed without further ado the effectiveness of all the documents summarized in the transmitted message, if a so-called "container signature" is present, because the context is be preserved between text and signature. The decision is convincing from a practical-technical point of view, because the will to sign the sender can be determined from the content of the respective document informally through interpretation - systems from a third party should not be authorized by the signature. In the medium term, however, the problem should be technically resolved: The systems of electronic legal transactions should only check identical signatures once. Ultimately, container signatures should not pose any legal problems and could be more practical as "tactical transmission". The container signature may then not be set by a lawyer, but must be carried out by the person who is capable of postulating, usually the lawyer. The Federal Court of Justice made a relevant decision on May 14, 2013 under transaction number VI ZB 7/13 and published the following guiding principle: "The qualified container signature used in the EGVP procedure meets the requirements of Section 130a ZPO".

Since the container signature can pose considerable problems when it is filed in a judicial electronic file and when a document is transmitted to the opponent in electronic legal transactions, parts of the legal literature have spoken out against the admissibility of the container signature. With the federal ordinance on electronic legal transactions of January 1, 2018, the legislator has taken up these concerns and will no longer allow the container signature to be in writing.

Restriction of the signature

According to the Signature Act, electronic signatures that basically only have a person-related, but not function- or organization-related evidence approach, can be provided with additions. On the one hand, there is the attribute that enables a more detailed qualification of the owner. In legal practice, this currently only plays a role for notaries. On the other hand, there are usage restrictions, which in practice mainly relate to the monetary usability of the signature. They limit financial transactions to a certain maximum amount. In several decisions, the Federal Fiscal Court had to deal with the question of whether the entry of a monetary restriction on use should have an impact on the effectiveness of an electronically transmitted defining document and has denied this because the identification function of the signature alone is important for submission to the court (BFH , Judgment of October 18, 2006, XI R 22/06, and judgment of February 19, 2009, IV R 97/06). These decisions, which are friendly to electronic legal transactions, will certainly one day be measured by the question of whether this should also apply in cases in which payment obligations, such as civil procedural advance payments, can be triggered at the same time as filing. Monetary limited signature cards should be used cautiously.

See also

literature

  • Uwe-Dietmar Berlit : The electronic file - legal framework for the electronic court file. JurPC web doc. 157/2008 ( online )
  • Michael Bertrams : Intervention in independence in the third power by centralizing the IT organization under the umbrella of the executive. NWVBL 2010, p. 209
  • Christopher Brosch, Friederike Lummel, Christoph Sandkühler, Daniela Freiheit, Electronic legal traffic with the beA, An introduction, 2017, ISBN 978-3-472-08970-4
  • Thomas A. Degen: Dunning and Complaints by E-Mail - Legal Framework and Digital Divide in Justice and Legal Services? NJW 2008, p. 1473
  • Haya Hadidi, Robert Mödl: The electronic submission to the courts. NJW 2010, p. 2097 judicial point of view, NJW 2007, p. 2439
  • Ralf Köbler: T-use in the judiciary does not violate judicial independence. NJW-aktuell 50/2011, p. 14
  • Herbert Landau , Ralf Köbler: In the name of the people - made in Germany. Quality in the judiciary - quality in the judiciary. BDVR circular 2003, p. 125
  • Herbert Landau, Ralf Köbler: Modernization of the judiciary, framework conditions and scope for action. BDVR circular 2002, p. 36
  • Thomas Lapp: Do we need De-Mail and citizen portals? DuD 2008, p. 1
  • Dominik Mardorf: The introduction of electronic legal transactions in register matters. Schleswig-Holstein advertisements, 2006, p. 413
  • Henning Müller: eJustice - The Justice Goes Digital, Legal Training, 2015, p. 609
  • Henning Müller: eJustice - Praxishandbuch, 2018, ISBN 9783746082080
  • Holger Radke: Quite successful. In move modern administration. 2009, p. 34
  • Frank Richter: E-files in court. In move modern administration. 2009, p. 40
  • Michael Ronellenfitsch : Modern justice, data protection and judicial independence. DuD 2055, p. 354
  • Alexander Roßnagel , Andreas Pfitzmann : The evidential value of email. NJW 2003, p. 1209

Web links

Individual evidence

  1. ↑ Directive 99/93 / EC (PDF) of the European Parliament and of the Council of December 13, 1999 on a Community framework for electronic signatures