Ius Archivi
The Ius Archivi ( Latin law of the archive ) confirms the evidential value of archival documents that are based on the legal presumption of authenticity .
Authenticity of conventional archive material
The Ius Archivi assumes the role of the archive as a "trusted custodian" ( English secure custodian, administrator, keeper ). In the 17th century it was treated as a monograph . The evidential effect of the Ius Archivi in the passive sense was u. a. described with the following three sentences:
"(" 1. The documents that have been submitted from a public archive, even if they are not public, regularly deserve undamaged credibility [...]. "
"2. The effect of the archive extends to areas outside the territory; a document that has been submitted from an archive unfolds its evidential effect in favor of the submitter not only against subjects, but also against third parties [...]. "
"3. The documents that have been presented from an archive do not require any other extrinsic evidence or recognition of the seal [...]. ")"
It is assumed that the written, pictorial and representational documents or certificates stored in a public archive guarantee that they have not been manipulated or falsified since they were deposited.
The claim to authenticity of documents was also reinforced by adding supposedly unalterable signatures and seals .
However , since the beginning of the 20th century, the evidential value of archival documents, i.e. the general Ius Archivi , no longer applies automatically to all judicial processes.
Authenticity of electronic documents
Principles
The authenticity of electronic archives must also be guaranteed in the digital age . One attempt at definition in 2002 was: "A recording is authentic if it is what it claims to be and if it is free from falsification or unauthorized modification."
One possibility is to use digital signatures or other electronic signatures . If the digital signature of the author has been successfully verified by the recipient or reader, the electronic document can be regarded as authentic. However, in order to be able to archive them, original data and files must be converted into the format in which the respective archive stores and signs electronic data. The conversion changes the binary structures and the electronic signature of the original can no longer be verified.
Implementation in Germany
The German Signature Act (SigG) distinguishes between three levels:
- § 2 No. 1 Electronic Signature
- § 2 No. 2 Advanced electronic signature
- § 2 No. 3 Qualified electronic signature
In register law, the belief in the legality of deposited electronic land registers and other registers is based on the digital signing of the entries. In legal proceedings, electronic evidence within the meaning of Section 126a BGB may only be presented with a qualified electronic signature.
In order to confirm their authenticity and evidential value ( Ius Archivi ), electronic archival materials require an electronic signature that is sufficient for the requirements to be made of the document in accordance with its intended use.
In 2003 a draft bill in the Federal Ministry of Justice saw the addition of § 371a of the ZPO u. a. in front:
"[...] (4) The provisions on the evidential value of public documents then apply accordingly to public electronic documents that were provided with a qualified electronic signature until they were converted into a different technical format and sent to a public archive, if 1. immediately before the conversion and the transmission a test according to the Signature Act has been carried out, 2. the results of the test and the documentation of the conversion have been certified by a certification note and 3. the public archive has chosen the method for the transmission and storage that are to be regarded as suitable for protecting electronic documents from falsification. If the requirements mentioned in sentence 1 are met, § 437 applies accordingly. [...] "
Paragraphs 1 and 3 of the proposal correspond to paragraphs 1 and 2 of Section 371a ZPO-E . According to the ministerial draft, the previous section 292a ZPO is repealed. Section 371a (1) sentence 2 ZPO-E takes its place. Paragraphs 2 and 4 of the proposal would adopt the ius archivi in the passive sense in the code of civil procedure.
The § 371a ZPO was not changed in this sense (as of February 2019).
literature
- Ernst Pitz : Contributions to the history of the lus Archivi. In: Der Archivar 16 (1963) Sp. 90-95, 281f.
- Friedrich Merzbacher : Ius Archivi. On historical archive law [Ius Archivi: About the Historical Right of Archive], Archivalische Zeitschrift 75: 135-47 (1979).
Individual evidence
- ^ Meyers Konversations-Lexikon, Fourth Edition, Ninth Volume, Verlag des Bibliographisches Institut, Leipzig 1887, p. 335
- ↑ Ahasver Fritsch: Tractatus de jure archivi et cancellariae , Jena 1664, Udo Schäfer: Authenticity: Electronic Signatures or Ius Archivi? , Bibliographical Information of the German Library 2004, p. 28 ( ISBN 3-937816-09-7 and ISSN 0436-6638) from Hamburg University Press , accessed March 9, 2019
- ^ Meyers Großes Konversations-Lexikon, Sixth Edition, First Volume, Bibliographisches Institut, Leipzig and Vienna 1905, p. 730
- ↑ a b c Udo Schäfer: Authenticity: Electronic Signatures or Ius Archivi? , Bibliographical Information of the German Library 2004, pp. 14–31 ( ISBN 3-937816-09-7 and ISSN 0436-6638) at Hamburg University Press , accessed March 7, 2019
- ↑ www.bmj.bund.de. Accessed: April 14, 2004. - Cf. Stefanie Fischer-Dieskau: The draft bill for the Justice Communication Act from the perspective of signature law. In: MultiMedia and Law 6 (2003) pp. 701–705. - Wolfram Viefhues: draft bill of the Justice Communication Act (JKomG). On the way to the electronic court record. In: Computer und Recht 19 (2003) pp. 541-548. in: Udo Schäfer: Authenticity: Electronic Signatures or Ius Archivi? , Bibliographic Information of the German Library 2004, pp. 29-31 ( ISBN 3-937816-09-7 and ISSN 0436-6638) at Hamburg University Press , accessed March 9, 2019
- ↑ Legal text , accessed March 10, 2019