RIGHT DOCUMENTARY
1 - Evolution
Document developed through history as a necessity of self-governing areas. In its origin was not simply an expression of human events. Through them, transmitting the important events, abandoning the old practice of oral transmission.
With the intervention of writing, and from it, the writing takes on the connotation it has today.
2 - Document. Instrument. Concepts. Classification
laws, substantial, the background, speak indistinctly of documents or terms like synonyms or equivalents, to denote the written documents, particularly those who are signed by their authors, when in fact correspond to different concepts.
In all cases there is for informational purposes, typical of any document, and that implies that it is designed to teach one thing, find it in the field of facts or in the field of law.
Documentation is an operation representing the declaration of intent. Carnelutti warns that, in the etymological sense, paper is one thing, that "docet", ie who bears the virtue of knowing. This virtue is due to its representative character, therefore, is a document used to represent something else. Moreover, the representation is always the work of a man, the document, but one thing is a opus (the result of a job).
Concept: Paper: Representation material ideal to demonstrate the existence of a fact or a legal act (life event independent of human will, contracts, wills, judgments, etc.) that can be used, if necessary, as evidence.
Under the name of documentary evidence, is primarily includes such documents, although the relevant procedural rules do not exclude the other representative objects (drawings, trademarks, passwords you maps, photographs, films, etc. ., which have the same fitness representative.)
The documents can be classified according to its mission primarily to its role and character of the persons who come.
a) From the point of view of content , documents are likely to fall into declarative and information only, according to, respectively, documented fact behave or not a statement of man.
declarative documents, in turn, based on the statement contained therein, may be sub classified into devices and information.
According to this concept, are documents which are devices, modify or extinguish legal relationships (eg, a contract, a bill of exchange, a sentence) and information which merely refer to record of a particular factual situation (ie, entries in the books of traders, news reports, medical records).
These documents are merely representative all remaining, ie, those that do not contain any statement (eg, milestones, photographs, drawings)
b) From the point of view function documents may fall in and merely constitute evidence.
constituent called to those documents that the law stands as an indispensable formal prerequisite for the validity of certain legal acts, excluding any other evidence for their existence (eg, the deed of donation of real property)
instead are merely evidence, documents that prove the existence of a legal act for which the law does not require a particular way and serve only as evidence of such act, not excluding the admissibility of other media.
c) From the point of view of the subjects from whom emanate documents can be public or private.
public documents are issued by government officials or holders of public faith, within the limits of its competence and in accordance with the formalities prescribed by law.
are private which are not of the above characteristics, whether emanating from the parties or third parties. Public documents are entitled to full faith while private no probative value until it is proving the authenticity of signatures.
Notarial :
concept: it is original or reproduced in any written, authorized by the notary and protected by him under the laws of your organization for ensuring the safety, value and permanence of the role, as Adriana Abella.
Characters: notarial characters are:
a) Corporeal: it has to do with the thing or material object with the script. Wins notarization seal. It ensures the authenticity and simplifies external payment sealing performance. The spelling is required with the necessary security conditions to remain indelible, legible and unchanging over time.
b) Author: the notary must be appointed by competent authority should be vested for the performance of the attest function and work within its jurisdiction. The notary is the author of the notarial deed.
c) Content is the intellectual value of the statement. The document not only a representative thing, or is able to represent a fact. Ensures the same act or transaction documented, factual matrix. Source test is superior.
d) Rite or ceremony, is essential in notarial deed and the notary must be held before and after the signing of a formal set of rules that determine their validity or appeal in case of not being met.
Rating:
documentary notarial activity forces us to distinguish: the activity authorizing and certifying activity.
Classification post as:
a) Original:
a. a) protocol, which passed in the protocol of the scribe sheets (sale deed)
a. b) Extraprotocolares: includes the certifications are signatures, photocopies and certificates in general.
b) Playback:
3 - Instrument and document Civil Code
In comparative law, the Civil Code uses the terms interchangeably a public and official document, and includes the notarial deed between so-called public instruments.
The Paraguayan Civil Code, the term used exclusively public documents, even in art. 401 inserts the voice appears herein.
The study of the instrument is linked to the form and evidence and legal act that contains it.
THE legislator regulates public and private instruments when it legislates on the form of legal acts, establishing the formalities, in Articles 302 to 304 and the form and proof of contracts refers directly to these articles.
5 - public Instrument
Code Civil provides a generic concept of a public instrument. There are different kinds of public documents and one of them is the attorney. The Article 375 recognizes as public instruments: The deeds and b) any other instrument authorizing Loses clerks or civil servants, under the conditions defined by law. The deeds granted by the notaries in their books of protocol, are public documents, as established by the Civil Code, being possibly one of the most important, but of more significance in the modern legal traffic .
Part of the doctrine and jurisprudence, following statements and the requirements of the Codes of substance, characterized by public instrument for the intervention of an officer or public official or anyone who is authorized to act as such.
The public instrument is the public authority that emanates from the range between the branches of government and determined by law to sign such documents, observing the formalities own. The person who does not perform in public can also be author of a document from the law calls the public and is no strict right to play a responsible official. It is worth recalling that Carnelutti the importance of considering the author of the document is the document that deserves the faith that deserves its author. One of the main sources, if not the first of the authority of the document, the authority of who forms it.
why is very important the distinction between a public and private instrument which is based not so much in quality as in the position the respective document to the document itself. Only when the document is made in the exercise of a public activity belongs to the category of public records.
4 - Private Instrument
must first be recognized, to enjoy a similar efficacy and still have to prove, liability or against singular successors to title, the truth of the stated date for which you should get a date certain for any of the procedures provided.
6 - The paper today. Reality has gained a rapid pace due to the profound social, economic and cultural and produced by information technology.
traditionally considered the essential basis written documents consisted of the element on which was written from the scrolls of the ancient Egyptians and later the paper was accepted as support materials accessible to sight and touch. With this conception changed electronics and accepted the documents and are possible material composition lacks the above items.
The document could be examined from different point of view.
From a structural perspective, just the way we express, the document is subject to a materiality that can take various forms will be built by a body-representation, and a script material, and between the correlation between the material and spirit of the document, the intellectual or educational element. In digital documents, the latter element exists independently of the substrate.
legal computing is a technique applied to the right instruments and, consequently, the right has had to accommodate to new figures that occur in your environment, affected by the development of media computer. On the computer, in criminal law appear new offenses, in procedural law are generated changes regarding the structure of the process and means of traditional tests also were altered.
coexist then two forms of legal negotiations are at the service user and are
a) classic contractual system, paper documents, to meet the needs of individuals, and if intervention by public deed notary, gives validity and authenticity to the instrument
b) the contract by computer or electronic data, rapidly evolving since late 1980, in which there are two aspects: the media or computing machine in which the contract will be filed, and script that consists of the binary language of the medium used himself.
legal act theory has undergone changes: the unit of measure is transformed as a result of factual possibilities of formalizing the legal business remotely via electronic means. Notary Law. Documentary-liability law attorney. Adriana Abella. P. 267
7 - The technology for the notary.
The fact that one way to begin to be used by society, means that society has accepted as a way of objectifying the business and produces what Roca Sastre called acclimation of forms. "
believe it is very positive to have technological advances to provide the notarial service. Implies a very important step access to a reliable database and reduce the risks of the difficult task of the notary in modern times.
The formalities are changing with the times. As it happened with the advent of paper and the writing at the time, is happening today with the mail.
The Austrian Notaries European Congress on Electronic Document (07/06/2000) presented an electronic archive of protocols. According to the latest amendment to the Austrian law attorney, once cleared for a script, each notary must electronically transmit a file that will in the future, easy access to the data search. Notary Law. Law documentary-liability attorney. Adriana Abella. P. 279 to 280
File under computer support. Background. Legal value:
registration techniques used was originally encompassed the literal transcription of the document. Registrable document or simply copying files. Without judicial review or rating with very limited powers of registrar. This technique still have records French, Belgian and Italian.
Recorder with broad powers to the classification, determined by extract the essential circumstances which have title and registration entry form, within the legal framework.
Background: This system is used in Germany, Switzerland, Austria, Spain, Mexico and Peru. This technique was slowly giving way our records by agreeing to the Supreme Court of Justice on the order mentioned:
- mortgages
- Powers and Ships Logs (Agreed 41/1985)
- Sale with the simultaneous formation of mortgages (Agreed 84/1986)
- Public Registry of Commerce (Agreed 111/1987)
- All other Acts (Agreed 112/1987)
The Agreed 117/1987, introduced as the Folio Real inscribed in our country technical :
This is an implementation of Agreed Agreed 68/1997:
1 - This folio, contained on computer is what is known as e-folio, which we have covered for example in the Horizontal Property Section.
2 - facsimile copies of the sheet can be used as certifications in order to achieve the display of the seats thus gives advertising material and formal at the same time and avoid unintended leakage or fraudulent forcing the notary to make the interpretation of the sheet and releasing the registration of such liability.
3 - There is also another form of file and the microfilm that can serve as backup documentation.
In that sense, the Agreed December 15, 1986, was established in the Directorate of Public Records Act, the section entitled "Microfilm and Index System" that incorporates advances Records technology for the durability of the Notes. It is important to keep documentation for posterity the paper can no longer endure over the years.
IT is essential to the functioning of a modern record:
- To store, organize and masses of data, impossible for the human mind.
- Make conclusions that intelligence can be accessed very slowly or you are unable to do so.
- Establish cyber relationship with networking, without the need for travel.
- Give accurate information, no leaks.
Its legal value must ultimately come to regard the law reduces the photocopy, recognized equal to that of the copy (Section 123 of Act 879 and 375 inc. h) of the Civil Code and the real folio technique and microfilm, implanted for granted. In the notarial records only legally permitted paper.
8 - Contracts by computer.
mail address appears as a central tool of virtual transactions. Technology has added new media (mostly electronic) that are displacing traditional media and with it, how to trade.
So replaced the fax mail correspondence, and then that was at once overcome by the so-called email. Electronic contracts emerged, which is beyond the concept categorization written contract.
are designed tools to improve security, reliability and integrity of electronic media. Among the most popular resources are the electronic signature, digital signature and electronic notarization.
Internet is a global network of computer networks that allows the interplay of millions of users by facilitating the exchange of data, images and sounds.
Borda says that there is no doubt that contracts concluded by computer are formally valid. Is that the Civil Code has established a rule the freedom of form. Therefore the use of so called computer media (magnetic, optical, electronic, photosensitive or authenticated encrypted systems must be unquestionably accepted as a valid way for the conclusion of contracts. From this premise is accepted to speak of contracts which the parties enter into expressing their consent digitally
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