11.2020 Life Guide
Analysis of the legal effect and difference among the original contract, fax copy and scanning copy
Far eastern New Century Corporation (China) investment / Tang Siyu
In the face of disputes after signing a contract, the contract is usually the most direct and powerful basis and evidence. But is there any difference between the original contract, the faxed copy and even the scanned copy? The following will analyze the relevant legal provisions to remind everyone to protect their own rights and interests.
1、 The legal effect of the original contract
The original contract refers to the contract text signed or sealed by both parties after the consensus of both parties. It is one of the "written forms" stipulated in the contract law, which has the most legal proof. As direct evidence and original evidence, it is a kind of evidence that directly comes from the disputed facts and can independently and directly prove the disputed facts, which is generally accepted by the court.
Two. Simultaneous interpreting of the contract facsimile
1 Fax is also a kind of "written form" of contract in the contract law. However, faxes of different nature will affect its legal effect
Faxes faxed by both parties to each other and directly modify or confirm the contents contained therein can be regarded as the original; however, faxes for the purpose of transmitting texts and images are similar in nature to photocopies and belong to the evidence of "undetermined validity" and cannot be used alone as evidence for ascertaining the facts of a case.
We should judge the probative power of the fax according to the objective situation. Even if the nature of the fax is the original, it can not be used as the evidence to determine the facts of the case. For example, as long as one party's acceptance has not been established, the faxed copy used in the process of mutual offer and acceptance of the parties can not be used as evidence to confirm the establishment of the contractual relationship; or, after the fax copy which can prove the establishment of the contractual relationship, the two parties have signed a formal contract text on the contract matters, then the fax copy can not be regarded as the content of the contract Evidence.
It is necessary to identify the authenticity of faxes before confirming the evidential validity of faxes. The contents of faxes can be changed and forged by means of copying and other means. Therefore, when faxes are used as originals, they have full evidential effect, but in general, other evidences are still needed to prove their authenticity. For example, it is necessary to prove that the two fax numbers have the factual basis of fax communication at a specific time point.
2 Confirmation of the evidential effect of the fax:
Ask the other party's opinions on the "cross examination" of the faxed copy (explain and cross examine the authenticity, legality, relevance, and the existence and size of the evidential force). If the other party does not accept it, further inquire whether the fax mark and fax number on the fax are owned by the party concerned. If the other party does not agree, the evidential effect of the faxed copy can be confirmed in accordance with the second paragraph of Article 8 of the provisions on evidence in civil procedure (see below for details).
For the examination of a single fax, the rule of evidence reinforcement can be applied and supported by other evidence; if there are multiple faxes, it is necessary to examine whether the faxes are connected with each other and whether they can be corroborated with other evidence. Through a series of faxes, combined with other evidence, if the continuity and relevance between faxes can be proved, then the evidential effect of faxes can be determined.
You can query the records of the fax sent by the telephone of the party sending the fax at a specific time, and compare it with the faxed copy. Such evidence may need to be obtained by applying to the court according to law.
3、 Legal effect of scanned contract
From the perspective of evidence, the scanned copy is a picture, which exists in the form of a photocopy, and can be tampered with technically. Therefore, the proof effect of the scanned copy is very low, and other relevant evidence should be provided to support the evidence to form a chain of evidence, so that the scanned copy can be used as the final evidence, so it has higher proof effect.
The scanned copy is equivalent to a photocopy, so it is difficult to obtain the support of the court for litigation. Although the original can also be tampered with, it can be identified, so it can be used as evidence to determine the fact, while the scanned copy can not be directly identified as evidence even if it is verified to be true, which is the biggest difference between the two.
4、 Legal Dept
1 The most powerful proof is the original contract with official seal, which needs to be kept properly.
2 In order to ensure the safety and compliance of the contract signing and performance, the contract shall be performed after the contract terms are confirmed, the contract is sealed and the contract is filed. With the help of reliable electronic contract platform, electronic contract signing management can meet the requirements of content not being tampered with and digital archiving, and can avoid risks to a certain extent
According to the electronic signature law, the electronic contract signed with reliable electronic signature has the same legal effect as the offline signature and seal of paper contract. A reliable electronic signature should meet the following conditions at the same time: when the electronic signature production materials are used for electronic signature, they are exclusive to the electronic signer; when signing, the electronic signature creation materials are only controlled by the electronic signer; after signing, any changes to the electronic signature can be found; after signing, any changes to the content and form of the information message can be found.
Article 3 of China's "electronic signature law" clearly stipulates that the parties concerned may agree to use or not to use electronic signatures and data messages in contracts or other documents, documents and other documents in civil activities. If the parties agree to use an electronic signature or data message, the legal effect of the document shall not be negated merely because it is in the form of an electronic signature or data message.
3 If there are some practical difficulties in the process of practical operation, so that the original can not be obtained, only the relevant fax or scanned copy can be obtained. Although both the fax copy and the scanned copy have certain legal effect, as long as the contract is scanned, faxed or original, the official seal must be used as long as it is a contract, otherwise, there is no proof strength. If it is scanned, it is better to scan in color. However, no matter whether the fax copy or the scanned copy, the original copy should be retained. If necessary, the comparison can be made to truly have legal effect.
4 In order to enhance the legal effect of faxed and scanned copies, a sentence "both parties agree that faxed and scanned copies have the same legal effect" can be added to the contract.
5 In the process of signing and performing the contract, both parties of the contract can use the Internet platform to transmit the contract and contract performance confirmation and other electronic texts through e-mail, and keep relevant records for use as evidence in case of disputes.
1、 The legal effect of the original contract
The original contract refers to the contract text signed or sealed by both parties after the consensus of both parties. It is one of the "written forms" stipulated in the contract law, which has the most legal proof. As direct evidence and original evidence, it is a kind of evidence that directly comes from the disputed facts and can independently and directly prove the disputed facts, which is generally accepted by the court.
Two. Simultaneous interpreting of the contract facsimile
1 Fax is also a kind of "written form" of contract in the contract law. However, faxes of different nature will affect its legal effect
Faxes faxed by both parties to each other and directly modify or confirm the contents contained therein can be regarded as the original; however, faxes for the purpose of transmitting texts and images are similar in nature to photocopies and belong to the evidence of "undetermined validity" and cannot be used alone as evidence for ascertaining the facts of a case.
We should judge the probative power of the fax according to the objective situation. Even if the nature of the fax is the original, it can not be used as the evidence to determine the facts of the case. For example, as long as one party's acceptance has not been established, the faxed copy used in the process of mutual offer and acceptance of the parties can not be used as evidence to confirm the establishment of the contractual relationship; or, after the fax copy which can prove the establishment of the contractual relationship, the two parties have signed a formal contract text on the contract matters, then the fax copy can not be regarded as the content of the contract Evidence.
It is necessary to identify the authenticity of faxes before confirming the evidential validity of faxes. The contents of faxes can be changed and forged by means of copying and other means. Therefore, when faxes are used as originals, they have full evidential effect, but in general, other evidences are still needed to prove their authenticity. For example, it is necessary to prove that the two fax numbers have the factual basis of fax communication at a specific time point.
2 Confirmation of the evidential effect of the fax:
Ask the other party's opinions on the "cross examination" of the faxed copy (explain and cross examine the authenticity, legality, relevance, and the existence and size of the evidential force). If the other party does not accept it, further inquire whether the fax mark and fax number on the fax are owned by the party concerned. If the other party does not agree, the evidential effect of the faxed copy can be confirmed in accordance with the second paragraph of Article 8 of the provisions on evidence in civil procedure (see below for details).
For the examination of a single fax, the rule of evidence reinforcement can be applied and supported by other evidence; if there are multiple faxes, it is necessary to examine whether the faxes are connected with each other and whether they can be corroborated with other evidence. Through a series of faxes, combined with other evidence, if the continuity and relevance between faxes can be proved, then the evidential effect of faxes can be determined.
You can query the records of the fax sent by the telephone of the party sending the fax at a specific time, and compare it with the faxed copy. Such evidence may need to be obtained by applying to the court according to law.
3、 Legal effect of scanned contract
From the perspective of evidence, the scanned copy is a picture, which exists in the form of a photocopy, and can be tampered with technically. Therefore, the proof effect of the scanned copy is very low, and other relevant evidence should be provided to support the evidence to form a chain of evidence, so that the scanned copy can be used as the final evidence, so it has higher proof effect.
The scanned copy is equivalent to a photocopy, so it is difficult to obtain the support of the court for litigation. Although the original can also be tampered with, it can be identified, so it can be used as evidence to determine the fact, while the scanned copy can not be directly identified as evidence even if it is verified to be true, which is the biggest difference between the two.
4、 Legal Dept
1 The most powerful proof is the original contract with official seal, which needs to be kept properly.
2 In order to ensure the safety and compliance of the contract signing and performance, the contract shall be performed after the contract terms are confirmed, the contract is sealed and the contract is filed. With the help of reliable electronic contract platform, electronic contract signing management can meet the requirements of content not being tampered with and digital archiving, and can avoid risks to a certain extent
According to the electronic signature law, the electronic contract signed with reliable electronic signature has the same legal effect as the offline signature and seal of paper contract. A reliable electronic signature should meet the following conditions at the same time: when the electronic signature production materials are used for electronic signature, they are exclusive to the electronic signer; when signing, the electronic signature creation materials are only controlled by the electronic signer; after signing, any changes to the electronic signature can be found; after signing, any changes to the content and form of the information message can be found.
Article 3 of China's "electronic signature law" clearly stipulates that the parties concerned may agree to use or not to use electronic signatures and data messages in contracts or other documents, documents and other documents in civil activities. If the parties agree to use an electronic signature or data message, the legal effect of the document shall not be negated merely because it is in the form of an electronic signature or data message.
3 If there are some practical difficulties in the process of practical operation, so that the original can not be obtained, only the relevant fax or scanned copy can be obtained. Although both the fax copy and the scanned copy have certain legal effect, as long as the contract is scanned, faxed or original, the official seal must be used as long as it is a contract, otherwise, there is no proof strength. If it is scanned, it is better to scan in color. However, no matter whether the fax copy or the scanned copy, the original copy should be retained. If necessary, the comparison can be made to truly have legal effect.
4 In order to enhance the legal effect of faxed and scanned copies, a sentence "both parties agree that faxed and scanned copies have the same legal effect" can be added to the contract.
5 In the process of signing and performing the contract, both parties of the contract can use the Internet platform to transmit the contract and contract performance confirmation and other electronic texts through e-mail, and keep relevant records for use as evidence in case of disputes.
