Eficacia probatoria e impugnación de los documentos electrónicos en el ordenamiento español

Abstract

In the present study the author analyzes the main characteristics of the regulation of documentary evidence and its effectiveness in our legal texts of commercial and civil prosecutory going back in this historical evolution to the beginning of the Spanish Codification. It also refers to the corresponding regulations contained in the Civil Code to reach those established in the current Civil Procedure Law. It then stops at the repealed Law 59/2003, of December 19, on electronic signatures and, finally, deals with Law 60/2020, of November 11, regulating certain aspects of electronic trust services. Documentary evidence is the queen of evidence in civil proceedings and, as has been said, the document deserves what its author deserves, hence the public document, notarized or authorized by a competent public employee, has a greater evidentiary effectiveness than that of the private document due to the guarantees presented by the documenter. Electronic documents have the character of public, private or official documents since the fact that they are electronic does not modify the nature of the document. In this way, the notarial public document can be presented on paper or by electronic document with equal evidentiary value, enjoying public faith and its content is presumed truthful and complete. As has also been highlighted by the doctrine, the electronic document with a qualified signature gives rise to simplified evidence, in the sense that the actor is excused from providing new evidence in the event of a challenge, because, in reality, he has already presented a test, a qualified electronic certificate.