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01 12 / 15

The copies of the documents as the evidence in the court

ARTICLE OF THE MANAGING PARTNER OF LEGAL GROUP PARADIGMA K. I. RUSAKOMSKY IN DECEMBER ISSUE OF «THE CORPORATE LAWYER» MAGAZINE.

Expert: Kliment Rusakomsky
Managing partner of Legal Group Paradigma

The main question is: What to do when the copies of the documents are had in support of our position in the court? Whether the court will take them as evidence, if the original documents have been lost?

Decision: The court may come to the decision based on copies of documents in conjunction with other evidences. Evidence’s algorithm will depend on the fact what exactly the copy of the document confirms: legally relevant facts or the exact contents of the document.

Practically, every lawyer dealt with the necessity to use copies of the documents instead of the originals in the arbitration process. There is a question always appeared: whether the court will accept a copy of the document as evidence or not. As regard to the copies of the documents as written evidence the Legislator's position is defined rather clearly: "The written evidence are submitted to the Court of Arbitration in the original or in the form of duly certified copy" (Article 75 of the APC of RF).

It seems on a literal reading of this provision of law that interested person may certify a copy in his possession and provide this copy to the court without of the original document. But it is not so true. In particular, the Arbitration Court of Moscow District pointed that the copies of documents may be verified only by a person who have the original documents (the judgment of 11.9.15 number F05-10979 / 2015 and the case number A40-149775 / 14) according to the meaning of Part 8 of Article 75 of the APC of RF.

The court may request the original document in any case, if there is any doubts in faithfulness of the copy. Therefore the person, who provides a verified copy of the document without of the original document, will be responsible for all of the ensuing consequence. The copy will not be accepted as evidence and the court may think that the action of the party is unconscientious related on this party The fact has not been proven, if it is confirmed only by the copy of the documents and the original document is lost or not be submitted to the court (Art. 6, Art. 71 of the APC of RF). At the same time, the court cannot take the copy of the documents if there are two conditions are met:

- The copy are provided by parties is not identic to each other.

- There is no opportunity to establish the true content of the primary source with the other evidences.

The purpose of evidence: to establish the exact content of the document or legally relevant fact.

There is important to correctly identify in questions of evidence what exactly we need to prove. There are two possible variances of actions depending on the final aim.

First option: we set the exact content of the document. For example, the specific conditions of the contract. In this case, you need to be finding the documents that confirm the content of the submitted copy. There is may be the correspondence of the parties or the same document is presented in the copy, but from other more reliable sources. For example, you can to request the copy in the control bodies having got the access to the originals of the investigated document previously. Thus, the registry affairs of official entities can include documents. According to any changes to the registry were made on the basis of it.

The second option: we prove the legally relevant facts. For example, it can be the fact of payment for services the contractor. In this case we must the documents are confirmed the relevant fact but it is not the content of the copy. For example, the fact of acceptance the goods by the buyer without claims can be confirmed by expert findings, as also with video cameras (which, for example, have been installed in the retail space), as the witness statements.

The selection of the actions’ specific strategy and the list of evidences strategy should be established based on the procedural position of the opponent and the specific circumstances of the case.

For example, the company files a suit to the court with the application for registration of creditors' claims. In support of legal position it is provided by loan agreements, and some of them are in the copies. The court does not intend to consider them without of the originals. Companies have to prove by itself the fact the loan (legally relevant fact). This could be done by other documents, confirming the transfer of assets to the loan. The question of the exact content of the particular clause of the contract was not raised. But if it would be important (for example, there was a dispute about the interest rate), for the company was tasked to provide to the court a copy of the loan contracts from other, more reliable sources.

When the court does not require the original documents

The court does not require originals of document probably if parties recognize the circumstances were confirmed by the copy of the document. The recognition must be executed properly (Art. 70 of the APC of RF). The court enters in the record or the parties have reported it in written materials are attached into the case. In this case, the copies of the documents can be presented to the court without any negative consequences. The fact of the parties' agreement on the circumstances, which are the subject to proving will be prevailing significance but not the content of the document copies.

It should be noted the circumstances is recognized by the court consideration also in the case when the other party does not dispute their and disagreement with it does not arise from other evidence (Art. 3.1 Art. 70 of the APC of RF). For example, the court received a copy of the ship’s log as a proof considering the case of debt recovery under the contract carriage of freights by sea.

The cited document

The arguments of the applicant's complaint on the failure of the original ship’s log cannot be taken into account by the court of the cassation instance (the court of third instance), as part 8 of Article 75 of the APC of RF allows the submission of written evidence in the form of duly certified copies, and article 71, paragraph 6 of the Code applies, when divergent copies of documents are presented to the court and the actual content of the original source are not possible to establish by the copies.

In this case, other copies are not identical with represented by of OOO "A" was not presented. The application was not made related this document (the judgment of FAS Far Eastern District on 21/10/13 number F03-5025 / 2013 in case number A24-499 / 2013).

Do we need the original document when the court has already considered them in another case?

Arbitration courts are entitled to request the original documents, but it is not always make use of it. Thus, the Arbitration court of the Ural District considered the case according with it the client (the defendant) confirmed the payment service by the performer (the plaintiff) by the copy of the receipt of credit cash order. The defendant is certifying the copy in appropriate ways and producing it into the court. The original documents actually was not reclaimed by the court. It passed the verdict about the proof of the payment’s fact of the plaintiff on the basis of the document’s copy. It presented by the interested party (the judgment of 10.02.15 № F09-9430 / 14, the case number A34-4597 / 2014). There were several factors were influenced on the outcome in this case. The court accepted this receipt before as the evidence of another case. The plaintiff did not present the original receipt or the copy of it differing from presented by the defendant.

What to do if the same document presented by parties has different meanings?

The case opponent may submit of the original document that you have submitted in the copy. The difficulty is that the texts of the original and copies are likely to be different. Especially in those places for which there is a dispute. However the court may establish certain important circumstances according to the matching points of the document (for example, the time and the place of conclusion of the contract, the contract price and etc.) . You should use other evidence to install questionable circumstances.

Thus, the statement of the company for inclusion in the register of claims of creditors of the debtor was considered by the Arbitration Court of Nizhny Novgorod Region (the definition of 02.13.15 on the case number A43-24796 / 2013 ). In support of their claims the bankruptcy creditor submitted to the court the copy of the contract with the debtor. In turn the debtor submitted to the court the original contract, which the item 11.1 was different from the same item in the submitted copy of the agreement. The creditor said the fraud.

In this case the court appointed the examination. As a result of its execution, it became clear that the primary text of the original contract was made ​​by the changes. The court requested a copy of the document, which was in the possession of the bank for the installation of the primary content of the original text (paragraph 11.1) in the contract. The court found earlier in the design of the passport of the transaction it was assured by the head of the debtor checking the documents. It is that particular document was founded by the court as the proper evidence.

How to confirm the legally relevant circumstances by other evidences?

According to documents submitted by the parties, the court re-creates for itself the relationships were existed between its. When the parties haven’t the original documents, the court cannot be considered circumstances are proven. In this case, it makes sense to refer on the other evidences confirming the facts with a reasonable degree of probability.

For example, the buyer transferred the advance payment to the supplier who gave him the goods. The supplier transferred to the buyer two copies of the consignment note together with the goods. The buyer signed the delivery note and sent it to the supplier, but the original is not returned. Afterwards the buyer filed a lawsuit in court with the requirement to return the advance payment and to pay the percent, as the supplier didn’t transfer the goods. The supplier presented the copy of the delivery note. The buyer filed a statement for the falsification. The court did not appoint the handwriting examination for the copy. He researched other materials of the case and concluded that the statement of falsification is unfounded. The supplier, in turn, presented the following documents: the invoice, the book sales and the VAT declaration. These documents indicated that he has taken into account at the delivery and paid the VAT from it. The court came to the conclusion that delivery has been based on these documents, as regards the buyer's requirements are unreasonable.

The appeal to the police upon of the buyer fraud was confirmed the fairness of the supplier. The relations in three transactions were taken place in addition with the supplier proofs in the dispute period between the parties. The parties acted in the same order: there was the extension of invoice for payment, the payment and the delivery of goods.

The supplier has provided as three accounts under the transactions , as also the payment orders and the delivery note (the resolution AS Volga-Vyatka district from 27.10.14 on the case number A79-215 / 2014).

Therefore, the supplier could not confirm the transfer of the goods without the original delivery note.But he has tried to demonstrate the reality of the conducted business transaction to the court by presenting to it the complete picture of the relationship between parties of the contract. Compared to the buyer he was more convincing in spite of the fact the strong argument of the buyer : the lack of delivery note.