"" Electronic document "means any content stored in electronic format, in particular text or sound, visual or audiovisual record"
Therefore, the format or content in which the data is found is irrelevant. The basic requirement to be considered an "electronic document" is that it is in electronic format.
The electronic document is, in essence, unsafe. By itself offers no greater guarantee than a mere photocopy. International law, and in particular the European legislation, only explicitly recognizes the electronic signature instrument as the means to provide legal certainty to an electronic document.
The electronic signature is the one that confers the necessary guarantees to be able to come to be considered legal evidence.
Qualified evidence is related to electronic documents associated with a recognized firm. The presumption of authenticity of the recognized electronic signature and of the associated documents is established in Article 3.8 of Law 59/2003 of Electronic Signature of Spain.
8. The medium in which the electronically signed data is found shall be admissible as documentary evidence at trial. If the authenticity of the acknowledged electronic signature with which the data incorporated into the electronic document is signed, it shall be verified that it is an advanced electronic signature based on a recognized certificate, which complies with all the requirements and conditions established in this document Law for this type of certificates, as well as that the signature has been generated by means of a secure electronic signature creation device.
The burden of carrying out the aforementioned checks shall correspond to whoever has submitted the signed electronic document with a recognized electronic signature. If such verifications obtain a positive result, the authenticity of the acknowledged electronic signature with which that electronic document has been signed will be presumed, being the costs, expenses and rights that originate the verification exclusively in charge of the one that had formulated the challenge. If, in the judgment of the court, the challenge was reckless, it may also impose a fine of 120 to 600 euros.
If the authenticity of the advanced electronic signature, with which the data incorporated into the electronic document is signed, will be subject to what is established in section 2 of article 326 of the Law on Civil Procedure.
Additional provision tenth. Modification of the Law of Civil Procedure.
A section three is added to article 326 of the Law on Civil Procedure with the following wording:
"When the party interested in the efficacy of an electronic document requests it or is challenged its authenticity, it shall proceed in accordance with the provisions of article 3 of the Electronic Signature Law."
Law 34/2002, of July 11, on services of the information society and electronic commerce, in its Article 23 and Article 24, determines the validity of contracts concluded by electronic means.
Article 23. Validity and effectiveness of contracts concluded by electronic means.
1. The contracts concluded by electronic means will produce all the effects provided by the legal system, when the consent and other necessary requirements for its validity concur.
The electronic contracts shall be governed by the provisions of this Title, by the Civil and Commercial Codes and by the other civil or commercial rules on contracts, especially the rules for the protection of consumers and users and the organization of commercial activity.
2. In order for electronic contracts to be valid, the prior agreement of the parties on the use of electronic means shall not be necessary.
3. Whenever the law requires that the contract or any information related thereto be in writing, this requirement shall be deemed satisfied if the contract or information is contained in an electronic medium.
4. The provisions of this Title shall not apply to contracts relating to family law and inheritance.
Contracts, businesses or legal acts in which the law determines for the validity or for the production of certain effects the public documentary form, or that require by law the intervention of jurisdictional bodies, notaries, property and commercial registrars or public authorities , Will be governed by its specific legislation.
Article 24. Proof of contracts concluded by electronic means.
1. Proof of the conclusion of a contract by electronic means and of the obligations arising from it shall be subject to the general rules of the legal system.
When electronic contracts are electronically signed, the electronic signature will be in accordance with article 3 of Law 59/2003 of December 19.
2. In any case, the electronic medium containing a contract concluded by electronic means shall be admissible in court as documentary evidence.
For your special interest we recommend reading the report published by Antonio Fernández Díez Subinspector of Employment and Social Security.
We intend to analyze the legal feasibility of signing contracts of employment through some digitized means, especially in the era of telematic communications, in which the contracting parties, businessman and worker, can be physically located in different places.
It is an essential requirement of validity of the contract of employment, as of any contract in general, that the contracting parties freely give their consent on the subject and the cause of the contract (articles1261 and 1262 of the Civil Code).
That is why the consent given by the parties to formalize the contract, usually through the handwritten signature of the same, especially when the contract is to be concluded in writing, although as we know, in our legal system, in matters of contracts, governs the principle Spiritualist of freedom of form (article 1278 of the Civil Code). Freedom of form which in the labor sphere is set out in article 8 of the Workers' Statute, providing for several cases of employment contracts in which they must necessarily be formalized in writing, the effects of the absence of form being that the contract is understood Concluded for an indefinite period and full time.
Thus, when the contract is formalized in writing - which facilitates proof that the contracting parties intend to be bound by it -, the normal means of forming the consent of company and worker has been the handwritten signature of the contract.
However, in the era of the information and communication society, in which the relationship of people, either between them or with the Administration is largely telematic, the law has regulated legal and technical instruments that allow Such telematic communication, for which the authenticity, veracity, identity and confidentiality of the subjects and data communicated must be guaranteed.
Currently, the Administration itself has been communicating with citizens through telematic channels in the social area of ??the Law. The RED system of Social Security has been a pioneer, progressively extending to other areas such as communication of medical parts of low, confirmation and medical discharge, and With the creation of new telematic communication channels, such as "contrat @" for the communication of the contents of the contracts, as "certific @ 2" for the sending of the company certificates, as "delt @" for the telematic transmission of parts Of occupational accidents, and "Cepross" for the remission of the parts of occupational diseases, among others. All these forms of telematic communication have their legal coverage in law 11/2007, of 22 June, on electronic access of citizens to public services, developed by Royal Decree 1671/2009 of November 6.
This telematic system of relation and formalization of contracts, demands that it be endowed with certain guarantees that allow to determine that who says to formalize the contract is who really says, since, unlike what happens with the traditional written document - indelible text on paper Visible physical signature that carries a handwritten signature - the computer document, because it is dependent on a technology that can manipulate third parties outside the signatory subject, can not, in principle, offer guarantees of truthfulness and authenticity that are required for a person to be bound by a contract.
Being in progressive use the telematic channels of communication and contracting, let us begin to analyze the viability of the contract of work is subscribed by different routes to the traditional handwritten signature.
For the legal effectiveness of telematic contracting instruments, and in order to give security to legal traffic, the law has provided instruments aimed at ensuring the authorship and authenticity of an electronically subscribed document, giving these instruments the same value Or legal effectiveness as to the handwritten signature initialed on paper. This purpose is intended to be achieved by Law 59/2003, of 19 December, on electronic signatures, which regulates electronic signatures, which transposes into Spanish law the content of Directive 1999/93 / EC on electronic signatures.
In order for the employment contract to be validly agreed, there must be an objective legal system that guarantees the authorship, identity and integrity of the consent provided through telematic channels. It involves the use of safe means that are not susceptible of manipulation.
The signing of a work contract using a telematic signature other than the handwritten signature will only be possible if the regulation established in Law 59/2003, dated December 19, on electronic signature, which we briefly expose, is fulfilled.
This law regulates electronic signature, its legal effectiveness and the provision of certification services, without affecting the rules regarding the conclusion, formalization, validity and effectiveness of contracts, as announced in Article 1.
The electronic signature is a set of data in electronic format that can determine the origin and integrity of the messages exchanged through telecommunications networks.
Article 3 of this law provides for three types of telematic signatures:
1. Electronic signature, which is defined as the data set in electronic form that can be used as a means of identifying the signatory.
2. Advanced electronic signature, which allows the signer to be identified and detect any subsequent changes to the signed data, which is linked to the signatory in a unique way and to the data to which it refers and which has been created by means that the signatory can keep under Its exclusive control.
3. Recognized electronic signature, which is the advanced electronic signature based on a certificate recognized and generated by a secure signature creation device. This is the signature that provides security against its falsification and protection against its use by third parties. Of this kind is the electronic signature incorporated into the National Identity Document, which allows the citizen to interact with the Administration (article 14 of law 11/2007, of June 22).
Of these three types of signature, only the same value as the handwritten signature is conferred on the recognized electronic signature, stating that "it shall have the same value as the handwritten signature in relation to those recorded on paper "(Article 3.4 of Law 59/2003).
The electronic signature refers to the electronic document, ie the document written in electronic format that incorporates data that are signed electronically. Electronic document that is support of public or private documents, among them of contracts (article 3.6 of the law 59/2003, of 19 of December). The electronic documents have the legal value and effectiveness corresponding to their respective nature, in accordance with the legislation applicable to them (Article 3.7 of Law 59/2003).
Finally, it should be borne in mind that "when an electronic signature is used in accordance with the conditions agreed upon by the parties in order to relate to one another, account shall be taken of what has been stipulated between them" (Article 3.10 of the same Act).
In this way, we can already affirm that, for legal purposes, only the electronic signature recognized is equivalent to the handwritten signature, so it will generally have the same efficacy as the manuscript, and can be used in electronic documents for the subscription of An employment contract
Finally, it should be noted that these effects do not have the scanned or digitized signature, which does not guarantee authenticity, authorship and identity, being susceptible of manipulation or alteration, so it has little probative force in relation to the consent thus rendered
Secretary of State for the Civil Service, Resolution of July 19, 2011, approving the Technical Standard for Interoperability of Electronic Document.
Secretary of State for the Civil Service, Resolution of July 19, 2011, approving the Technical Standard for Interoperability of Electronic Files.
Secretary of State for Public Administration Resolution of June 28, 2012, which approves the Technical Rule for Interoperability of Electronic Document Management Policy.
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