We know that signature plays an important role in the transaction. When trading, both parties usually want to confirm two things:
① The transaction object is authentic. People usually ask the other party to provide something to prove their identity, such as ID card, household registration book, etc. After the transaction is completed, they will also ask him to sign or seal it in person. In this way, in the event of a dispute, you can come up with a contract or document signed or sealed by the other party, so that the other party can't deny it afterwards.
② The information transmitted by both parties to the transaction is true and complete. Both parties to the transaction communicate their trading intentions by telephone or fax. After reaching an agreement, they usually sign an official text, which is signed and sealed by both parties, and each party holds one copy. The purpose of this is to ensure that the contents of the contract will not be tampered with or forged, and the contents stipulated in the official text are the final true meaning expression of both parties.
The existing legal rules perfect and standardize the traditional signature and seal, and can also meet the requirements of economic practice. However, e-commerce requires transactions through the Internet, and the two parties to the transaction are separated from each other thousands of miles away, completely divorced from the traditional "paper and pen" trading medium. With the development of e-commerce, it is becoming more and more important to establish the equal effect of digital signature and handwritten signature in law.
In fact, electronic signature has played two roles: first, electronic media has replaced paper media; The second is to confirm the identity of the parties and play the role of signing or sealing. Then, after the technology has solved the first step, the question turns to the law-can the law recognize the technical product of electronic signature?
However, denying the legal effect of electronic signature will undoubtedly end the development of e-commerce. In view of this, the international community has adopted? Quot Translation and Interpretation methods suggest or stipulate that the legal definition of "signature" should be extended to include "electronic signature". Academics also believe that the digital signature legislation of various countries in the world, such as the American Electronic Signature Act for Global and Domestic Business, the Singapore Electronic Transaction Act and other legal documents, has very important reference significance for China's electronic signature legislation.
First of all, it is certain that the electronic signature meets the legal requirement that the contract must be in written form. "Written form" should be a concept with wide meaning and continuous development. This is a real thing, which is evidence in itself. Electronic signatures basically have such characteristics. The information it contains can be displayed by computer or other media, and its content can also be reflected in traditional paper media.
Secondly, the electronic signature meets the requirements of the Signature Law. The fundamental purpose of signature and seal is to prove the identity of the parties and the authenticity and integrity of the information. The development of technology has basically made electronic signatures have such uses, and we also explained this when introducing the process of making and transmitting electronic signatures. Therefore, the law usually stipulates that as long as reliable methods are used to prove the identity of the parties, prove that the parties agree with the contents contained in the information, and that the information is reliable in the transmission process, then this information meets the legal requirements for signature. Electronic signature meets this requirement.
Finally, an electronic signature has the same legal effect as a written signature. Traditional laws usually require that contracts and related documents should be original and must be presented as evidence in court. The electronic signature law should stipulate that electronic signatures meet the requirements of the law for originals and have the effect of original evidence. Therefore, the laws of most countries or regions stipulate that electronic signature has the same effect and execution as written signature, and its legal effect cannot be denied just because it is a kind of digital and electronic information.
In order to ensure that an electronic document that needs authentication will not be denied its legal effect just because it is not authenticated in a unique way as a written document, Article 7 of the United Nations Model Law on Electronic Commerce stipulates: "If the law requires a person to sign, for a data message, if:
(1) Use a method to identify the person and show that the person agrees with the information contained in the data message;
② In all cases, including any relevant agreements, the methods used are reliable and appropriate for the purpose of generating or transmitting data messages. "
Article 7 of the Model Law on Electronic Commerce takes a comprehensive approach to determine under what general circumstances a data message can be regarded as proven to have sufficient credibility and can be effectively executed, and as meeting the signature requirements, which currently constitute an obstacle to electronic commerce. Article 7 focuses on two basic functions of signature: one is to identify the author of the document, and the other is to confirm that the author agrees with the contents of the document.
According to Article 7 of the Model Law on Electronic Commerce, Article 2 of the Draft Uniform Rules for Electronic Commerce of the thirty-fifth session of the Working Group on Electronic Commerce of the United Nations Commission on International Trade Law puts forward that "'electronic signature' refers to the data contained in, attached to or logically related to the data message in electronic form, and any method related to the data message, which can be used by the signature holder related to the data message, and shows that this person approves the information contained in the data message."
Electronic signature can meet the legal requirements for signature. At the same time, the Model Law adopts both legal means (that is, all signatures that can identify the originator of information and show that the originator approves the information are legal signatures) and contractual means (the parties remove the legal obstacles of autograph through any mutual agreement) to solve the legal effect of electronic signatures, and the rule of "functional equivalence" runs through these two means all the time. Before the Model Law, the electronic bill of lading rule of 1990 had similar provisions, but it was expressed in different ways. Article 1 1 stipulates that all parties "agree that the transmitted and confirmed electronic data contained in the computer data repository, displayed on the screen in human language or printed by computer will meet the requirement that any transport contract stipulated by domestic laws or local methods, customs or practices must be signed and certified in writing." The legislation of some countries directly covers two functions of signature when defining electronic signature. In fact, the legal effect of electronic signature has been basically recognized all over the world, and even in the field of intergovernmental agreements and citizen ID cards, electronic signature technology is gradually being applied.
A question related to the legal effect of electronic signatures is, which technology is used to generate electronic signatures in online transactions, which is safe and reliable, and which is legally recognized? This is also a controversial issue since the appearance of electronic signature. In the United States, where electronic signature legislation is the earliest and most developed, there are roughly two solutions: one is a "technology-specific" scheme represented by Utah and Illinois, which holds that only electronic signatures made with asymmetric key encryption technology have the same legal effect as pen signatures, while other technologies, such as computer password, symmetric key encryption, biometric handwriting recognition, eyeball iris net, etc., are either insufficient in safety factor or applied. The other is the technology-neutral scheme represented by California and Rhode Island, which thinks that technology specificity limits the development of other similar technologies and is not conducive to protecting consumers. By measuring and comparing the two schemes, it can be considered that the technology-neutral scheme is more conducive to the development of Internet industry and network commerce. Technical standards and other interoperability mechanisms should be decided by the market, and the government's attempt to formulate technical standards to control the Internet will only lead to the danger of hindering technological innovation. Because voluntary standards prevail on the Internet, and the formulation and acceptance of standards are based on the media and consensus. This is an important factor to stimulate the rapid development of the Internet. The law only needs the management principle, and all electronic technical means that can identify the identity of traders can be used as the generation technology of electronic signatures, thus recognizing the effectiveness of electronic signatures. It is not appropriate to directly link a technical standard with the legal effect of electronic signature. Of course, this does not mean that the government can't use its public power to make necessary preparations for the information industry through legal means. The economy without rules and legal system is undoubtedly dangerous.