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Anna SHTEFAN,

Head of the Department of Copyright and Related Rights of the Research Institute of Intellectual Property of the National Academy of Legal Sciences of Ukraine, Candidate of Law

THE DISTINCTIVE CHARACTERISTICS OF WRITTEN EVIDENCE

In Part 1 of Art. 64 of previous edition of Civil Procedure Code, written evidence is defined as any documents, acts, certificates, correspondence of official or personal character or excerpts from them, containing information about the circumstances relevant to the case. For many decades, the procedural doctrine is based on the understanding of written evidence as objects in which opinions that containing facts about matters relevant to the resolution of a case are expressed by signs. In the new procedural legislation the range of objects that can be recognized as written evidence is limited to documents not expressed in electronic form. Therefore, it is necessary to carry out a detailed analysis of the peculiarities of written evidence which will form a complete picture of their legal nature and will allow for the elaboration of clear criteria for their differentiation with other sources of evidence.

The first distinguishing feature of written evidence is that they are formed by a person by means of a letter (writing, drawing, drawing, burning, stamping, cutting, etc.) on a material object that is capable of storing the applied characters, including a computer set of text (or other document creation using a computer) with subsequent printing. Although electronic text documents are created using symbols, they are not formed by the use of marks on the surface of a particular object, but because of the introduction of one or another information into the corresponding computer program. In the electronic text the fixation of information is not connected with the change of the surface of the material object. In the context of differentiation with documents created by a computer set for further printing, electronic text documents continue to exist in electronic form without the need for reproduction on any material medium.

The second distinguishing feature is the way of perceiving information recorded in written proof. Attention to this has not yet been emphasized in the doctrine since in the context of previous legal regulation electronic documents were actually considered as a kind of written evidence. In connection with the allocation of electronic evidence in an independent source of evidence, the way of perception of recorded information will also serve the purpose of distinguishing written evidence from among others.

The content of electronic evidence can be perceived by the court through the use of technical means or devices that enable the ability to read text-based electronic documents, view graphic images and photographs, listen to voice messages and sound recordings, browse websites, etc. For the investigation of the content of the original electronic evidence it is always necessary to have the appropriate technical equipment. The study of the content of written evidence is carried out through direct perception (reading or review) by the organs of vision of a person and does not require any technical support. Even when a document is printed in very small print and needing glasses or magnifying glass for reading it, their use does not mean going beyond the visual perception since these means are not technical.

On the basis of the study, it is possible to propose the following definition of written evidence: written evidence are documents created by letter including the creation by means of a computer with the subsequent printing, the content of which is perceived visually without the use of technical means or devices and which contain information about the circumstances relevant to the correct resolution of the case.

Key words: written evidence, characteristics of written evidence.

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