Brief Introduction to the “Electronic Signature Law of the PRC”

5.8 Brief Introduction to the “Electronic Signature Law of the PRC”

The “Electronic Signature Law of the PRC” was promulgated on Aug. 28th, 2004 and become effective on April 1, 2005. It has solved many problems mentioned above, such as what time shall be deemed as sending time, what time shall be deemed as arrival time, when to take effect, the sending place, the receiving place, whether the electronic text sent automatically by the system can be deemed to represent the true intention of the system owner, and such questions. Its promulgation will have profound impact to the development of e-commerce and electronic political affairs in our country. This law aims to confirm the legal validity of electronic signature as that of manual signatures or stamps, and is applicable to the e-commerce and electronic political affairs in our country. The enactment of this law will be a great matter in the economic and social life and symbolizes that our nation has become one of the advanced digitalized and network countries in the world. It will greatly promote the smooth development of our e-commerce and electronic political affairs, the level of informatization, the improvement of our national economy, and the increase of management benefits and quality of banks. This law can be safely considered in its true sense as the first law in China concerning information technology.

The law includes five chapters and 36 articles, including general provisions, electronic data messages, electronic signature and authentication, and supplementary provisions.

The general provisions include the aim of enacting this law, the definition of electronic signatures, and its applicable and inapplicable range. The aim of this law is to regulate the behavior of digital signature, establish the legal validity of electronic signatures and balance the legal rights and interests of parties involved.

Introduction to E-commerce

The electronic signature is defined as the data included or appended in the electronic data messages in the form of digital writing used to identify the identity of the signatory and show his approval of the included content. The law also adopts the principle of independent decision by the parties, i.e., the parties can agree whether to use electronic signatures or electronic data messages in the contracts in civil activities or other documents or instruments. There are also some exceptions, including: (1) Concerning personal relations such as marriage, adoption and heirdom. (2) Concerning rights and interest transfer of estate such as land and house. (3) Concerning suspension of public utility services such as supply of water, heat, gas and electricity. (4) Other cases where electronic documents are inapplicable stipulated by laws and administrative regulations.

In the part of data messages it is prescribed that the electronic data messages satisfying certain conditions can be regarded as the written form provided by laws and regulations or used and restored as the original form. The elements to

be considered to determine the truthfulness of the data messages are also provided. The law in particular provides that the message automatically sent by the information system of the sender is regarded as sent by the sender, regardless of whether it is out of the true intention of the sender himself. Concerning the reception, if the law or administrative regulations provide or the parties agree that the data messages will be considered as received after confirmation, such provision or agreement shall be followed. When the sender receives the confirmation of the receiver, the data messages is considered as received. The time shall be considered as the sending time when the data messages go into a message system out of the sender’s control. About the receiving time, if the receiver has designated a particular system to receive the data messages, the time is regarded as the receiving time when the electronic data messages enters this particular system; if no particular system is designated, the time is considered as the receiving time when the electronic data messages initially enters any system of the receiver. About the sending and receiving places, the principal office of the sender is considered as the sending place and that of the receiver as the receiving place, if there is no principal office, and then the habitual residence is considered as the sending or receiving places.

The electronic signature and authentication part has provided that reliable digital signature has the same legal validity as that of manual signatures and stamps, the ascertainment, storage and cease of the electronic signature, condition needed for providing the electronic signature authentication and the content of the authentication certificates.

The legal responsibility part has provided the responsibility that shall be assumed when the electronic signatory, the party dependent on the signature and the electronic authentication provider violates the relevant provisions, when anyone counterfeits, uses as his own or usurps others’ electronic signatures, and when the staff of the departments in charge of the supervision and management

5 E-commerce and the Law

of electronic authentication service commits negligence or abuses their power.

The supplementary provisions provide the legal definitions of some terms in the law and the execution time of the law.