Electronic contracts are increasingly widely used in business operations with the advantages of speed and convenient information storage. However, enterprises need to pay attention to the use and signing of electronic contracts to comply with legal regulations.
In this article, PLF would like to note some important contents to keep in mind when using and signing electronic contracts.
1. Electronic contracts and their characteristics
To know how to use electronic contracts, enterprises first need to understand what an electronic contract is and its characteristics. According to the Law on Electronic Transactions 2023, an electronic contract is a contract established in the form of a data message. In which, a data message is information created, sent, received, and stored by electronic means, expressed in several forms:
- electronic text,
- electronic documents,
- electronic certificates,
- electronic documents,
- electronic mail,
- telegrams,
- telegrams,
- faxes and other forms of electronic data exchange or can be converted from paper documents.
It can be understood that an electronic contract is a contract containing information created, sent, received, and stored by electronic means such as Word and PDF contracts created from computer software and sent via email, other application platforms such as Zalo, Microsoft Teams, etc.
Since an electronic contract is a data message, the information of an electronic contract must be:
- accessible and usable in complete form for reference to the document;
- ensure the integrity of the information;
- be stored in a certain way that allows identification of the origin, sender, recipient, time of sending and receiving the electronic contract;
- have a separate symbol confirming that it has been converted from a paper document to a data message and information of the agency, organization or individual performing the conversion.
By clearly defining the characteristics of electronic contracts mentioned above, the Vietnamese State does not deny the legal value of electronic contracts (i) concluded or performed from the interaction between an automatic information system and a person, or (ii) between automatic information systems with each other simply because there is no human inspection or intervention in each specific action performed by the automatic information systems.
2. 04 ways to sign electronic contracts
From the above characteristics of electronic contracts, it can be seen that there are 04 ways to sign electronic contracts:
a) Signing electronic contracts with electronic signatures:
It should be noted that electronic signatures are created in the form of electronic data attached or logically combined with data messages to confirm the signing subject and the subject’s acceptance of the data message. Accordingly, to authenticate electronic signatures, enterprises can use electronic signature services of intermediary service providers. This is to ensure safety in the process of concluding electronic contracts to avoid invalid contracts due to failure to ensure the correct verification of the subject and the subject’s acceptance.
b) Signing electronic contracts with digital signatures:
A digital signature is an electronic signature that uses an asymmetric key algorithm, including a private key and a public key, in which the private key is used to sign and the public key is used to verify the digital signature. A digital signature ensures authenticity, integrity and non-repudiation. Hơever, it does not ensure the confidentiality of the data message. A digital signature must meet the security conditions according to Article 9 of Decree 130/2018/ND-CP such as:
- created during the validity of the digital certificate and can be verified by the public key recorded on that digital certificate;
- created by using the private key corresponding to the public key recorded on the digital certificate issued by a licensed organization;
- the private key is only under the control of the signer at the time of signing.
Thus, signing an electronic contract using a digital signature requires the support of a third party.
c) Signing electronic contracts through data message confirmation
With this method, enterprises can send Word or PDF files, images, or scans of contracts created electronically via email, or other applications. However, they must ensure that these electronic contracts meet the conditions outlined in Section 1 of this article.
Accordingly, in this case, one party when sending the electronic contract must clearly express the desire to sign the electronic contract and the other party when receiving the electronic contract must clearly express their agreement with the entire content of the electronic contract. In case the parties adjust any content of the contracts but do not express their agreement with the adjusted content and the entire remaining contents of the electronic contract or the party receiving the electronic contract does not confirm their agreement with the entire contents of the electronic contract within the specified time, there is a high risk that this contract will be considered unsigned.
d) Converting paper contracts into data messages for signing
With this method, enterprises need to note that the electronic contract converted from a paper document must have complete and intact content for reference with the paper version. Besides, the data message must have a separate symbol confirming that it has been converted from a paper document to a data message and information about the agency, organization or individual performing the conversion. Furthermore, this data message must ensure the remaining conditions of an electronic contract as listed in Section 1 above.
Thus, the signing of electronic contracts has become more popular and simpler with many ways of implementation. However, to ensure the validity of electronic contracts, enterprises need to pay close attention to the conditions for an electronic contract to be recognized and guaranteed to be enforced in practice. The method used to sign an electronic contract will be accompanied by corresponding requirements.
Contact PLF Law Firm today via email at inquiry@plf.vn or +84913 902 906 or Zalo | Viber | WhatsApp to receive a free 30-Initial Minute Consultation.
Time of writing: 12/08/2024
PLF Law Firm
