The first is the identification of the subject of the contract. Different from the traditional face-to-face signing of paper contracts, the identification and verification of the signing subject of electronic contracts is the basic problem of contract effectiveness. Here, we should not only determine the identity of the undertaker, but also pay attention to whether it is a true meaning expression.
The second is the verification of electronic signature. Judging whether an electronic signature is "reliable" is generally judged from two aspects: whether the electronic signature is true and legal, whether it has been modified or tampered with, whether it is shown in the form of evidence, whether it has a valid digital certificate issued by CA, and whether the changes to the electronic signature itself or the content and form of the data message after signing can be found.
The third is the revision of the terms of the contract. According to the nature of data messages, electronic contracts are more likely to be amended. If an electronic document has been tampered with, added or deleted, it cannot be considered that the contents of the document are the same.
Guard against risks related to electronic contracts and electronic signatures;
In view of the possible risks caused by electronic contracts and electronic signatures, we propose the following compliance control suggestions to prevent disputes.
1. Choose a safe and reliable third-party platform service.
Article 16 of the Electronic Signature Law stipulates that if the electronic signature needs the authentication of a third party, the legally established electronic authentication service provider shall provide authentication services. Usually, for an authenticated electronic signature, a certification authority can be required to provide a certification certificate to prove the authenticity of the electronic signature. Article 94 of the Supreme People's Court's Provisions on Evidence in Civil Proceedings stipulates that "the people's court may confirm the authenticity of electronic data in any of the following circumstances: it is provided or confirmed by a neutral third-party platform that records and keeps electronic data". After the certificate is deposited by a qualified third party, it can strengthen the probative force of the evidence and increase the possibility of the court accepting the evidence.
At the same time, because electronic contracts may involve more personal information or business secrets, in order to protect relevant data, we should also carefully choose a third-party platform with corresponding data protection capabilities.
2. Strengthen the management of electronic signatures within the company.
Since reliable electronic signatures have the same legal effect as handwritten signatures and seals, the company should try its best to improve its internal control system and take the collection of electronic signatures as the management of entity seals. When the electronic signature is found to be stolen or out of control, the relevant parties should be informed in time to avoid taking additional legal responsibilities.
3, do a good job of electronic contract text and electronic signature verification.
By means of electronic authentication certificate (digital certificate+time stamp), the uniqueness and non-tampering of electronic contract and electronic signature are confirmed to avoid being tampered with.
4. Improve the probative power of electronic contracts through notarization.
In litigation, in addition to issuing a certificate through a third-party platform to confirm that the original contract is consistent with the text submitted in litigation, you can also generate a notarial certificate by signing and saving the electronic contract synchronously, and submit the notarial certificate in litigation to confirm that the submitted documents are consistent with the electronic original.
5. Pay attention to business traces and strengthen the evidential effect of electronic contracts.
The Guidelines for Common Legal Issues in Epidemic Prevention and Control (III) issued by the Shanghai Municipal Bureau of Justice mentioned that the original electronic contract should be kept, and the signing and performance of the electronic contract should be prepared and performed later, and related e-mail, communication records, general recall, bank transfer records, supplementary agreements, delivery records, etc. It can be used as supplementary evidence in disputes, improve the evidence chain and enhance the evidence effect of electronic contracts.
Leave traces in the process of contract performance, archive the relevant evidence materials formed by both parties in the process of contract performance and the proof materials of the third party's participation in the process of contract performance, and enhance the evidence effect of electronic contracts by forming a true, complete and legal evidence chain. At the same time, you can also ask the other party to increase the effectiveness of the certificate by issuing paper proof materials stamped with the entity seal and providing official website announcement.
6. Pay attention to whether there is an agreement on the use of electronic signatures and data messages in the contract text.
In the process of signing an electronic contract, we should pay attention to whether there are any differences between the terms and the actual application. Where an electronic contract or electronic signature is used, it can also be clearly stipulated in the contract that both parties agree to sign the contract in the form of data messages and recognize the terms and effects of the contract.
Article 3 of the Electronic Signature Law "In civil activities, the parties may agree to use or not use electronic signatures and data messages.