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1. The true copy, the old regime
The old regime of certified copying places an important emphasis on the existence or not of the original, which affects the evidentiary value of the copy.
When the original is no longer available, a hierarchy of copies is established according to their nature and authority. There are therefore three categories with decreasing evidentiary value:
- authentic copies (court decisions)
- Copies as prima facie evidence (copies by notary not old, copies drawn by someone other than the trustee of the minute, and transcripts on public records)
- Copies are just information (e.g. copies of copies)
All documents that do not fall under these categories fall under the former article 1348 paragraph 2 of the Civil Code. As an exception, when the original no longer exists and a party provides “a copy that is not only a faithful but also a durable reproduction”, the document is admitted as proof. It's the judges who appreciate In concrete these conditions. If this is the case, these copies are not beginnings of written proof but are full proof (Civ. 1st, May 30, 2000). The burden of proof then falls on the person who produces the writing.
When the original survives, according to the former Article 1334 of the Civil Code, the copies “are not authentic of what is contained in the title, whose representation may always be required”. In the event that the original cannot be produced and in the presence of a dispute, the copy loses its probative value (except the authentic copy).
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2. The new regime of article 1379 of the Civil Code
Since the 2016 ordinance, the regime has been unified under article 1379. It has:
” A reliable copy has the same evidentiary value as the original. Reliability is left to the discretion of the judge. Nevertheless, an enforceable or authentic copy of an authentic writing is considered reliable.
Any copy resulting from an identical reproduction of the form and content of the act, and whose integrity is guaranteed over time by a process in accordance with conditions established by decree of the Council of State, is presumed reliable until proven otherwise.
If the original survives, its presentation may still be required. ”
Thus, a new concept of reliable copy. In principle, a reliable copy has the same evidentiary value as the original, and the judge is sovereign in assessing its reliability. This concept prevails whether the original survives or not. Simply, if it remains, its presentation may still be required.
Decree No. 2016-1673 of 5 December 2016 specified the conditions for the reliability of copies. Thus, the resulting copy is presumed to be reliable:
- or a reproduction process that results in a irreversible modification of the copy medium
- or, in the case of reproduction by electronic means, a process that meets the conditions provided for in articles 2 to 6 of the decree
These items require:
- an electronic reproduction process that produces copy-related information and intended for the identification of it, which specify the context of digitization, in particular the date of the copy
- the integrity of the copy must be attested by a electronic fingerprint which ensures that any subsequent changes to the copy to which is attached are detectable. This condition is presumed to be met by the use of a qualified timestamp, a qualified electronic stamp, or a qualified electronic signature, within the meaning of the European eIDAS regulation
- keeping the copy in conditions to avoid any alteration of its form or content, and ensuring the tracking of changes with the generation of a new footprint
- preservation of the fingerprints and traces generated
- access to reproduction and conservation devices subject to appropriate security measures
Compliance with these conditions makes it possible to establish a true copy.
What happens when the original is gone? If the reliability conditions are met, the solution of the former article 1335 of the Civil Code applies: reliability is only a presumption left to the sovereign discretion of the judge. Only, The burden of proof is reversed and it is the party that disputes the reliability that will have to prove it. If reliability requirements are not met, there is no presumption of reliability.
Find our summary on the legal regime for certified copying.
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3. Practical uses
The new article 1379 greatly simplifies the process of digitizing legal documents by making them secure, subject to compliance with the conditions established by law. Concretely, the legal or corporate agent must store his copies on a cloud offering a qualified timestamp within the meaning of article 42 of the eIDAS regulation, which ensures the integrity of the document. This document must also be signed with an advanced electronic signature (RGS 1*).
Find out our article here to find out What is the best way to ensure secure online storage of business data.
These conditions met, the document will have the status of a reliable copy within the meaning of article 1379 and will have the same evidentiary value as the original. If the original remains, it may be required. If it no longer exists, the copy signed with a so-called “qualified” process and stored on a secure cloud is presumed to be reliable, it is up to the opposing party to contest and prove it.
Capbloc therefore integrates these two conditions into its solution.. By offering advanced electronic signatures, and storage in a digital safe component (CCFN), your legal documents will maintain their probative value thanks to their qualification as a certified true copy.
Discover the Axiocap digital safe at the forefront of security.
