The use of electronic evidence in civil cases, arising from loan agreements, concluded in electronic form

Abstract

This scientific article based on the analysis of case law, examines the theoretical and practical aspects of the use of electronic evidence in cases arising from loan agreements concluded in electronic form. Emphasis is placed on process of judicial proving in the most common categories of cases in judicial practice: in civil cases of debt collection under a loan agreement and cases on recognition of such agreements as invalid or unconcluded.
 The range of legally significant circumstances that are included in the subject of proof in cases of debt collection under a loan agreement is determined. The range of court evidence used in judicial practice to prove to the court the presence or absence of the circumstances of the subject of evidence in these cases is outlined.
 There is a relationship between the facts of the subject of proof, and the need to study and evaluate court evidence that confirms the fact of concluding a loan agreement only in conjunction with evidence that confirms the transfer of funds to the borrower. It is proved that the fact of concluding a loan agreement cannot be established by a court without establishing the fact of transferring funds to the borrower.
 There is a contradiction between the provisions of the Law of Ukraine «On Electronic Commerce» and the provisions of the Civil Procedure Code of Ukraine on the classification of evidence submitted in electronic form and/or in the form of paper copies of electronic communications related to electronic transactions, written or electronic evidence, and a method for resolving this contradiction is proposed.
 It is emphasized the importance for the court to pay special attention to the means of identification of the parties to the electronic transaction to determine the appropriate parties in resolving cases arising from loan agreements concluded through information and telecommunications systems. The conclusion is made about the possibility of procedural complicity on the part of the defendant if in the course of the trial was established that the loan was issued to one person, and the funds under the contract were transferred by the financial institution to another person's bank account.