THE REGULATION OF VIETNAMESE LAW ON E-SIGNATURES AND DIGITAL SIGNATURES

by Admin

10/11/2021

Documentation & Knowledge

THE REGULATION OF VIETNAMESE LAW ON E-SIGNATURES AND DIGITAL SIGNATURES

Recently, with the drastic development of science and technology, e-signatures and digital signatures are being widely used in transaction activities in most fields. However, what are their legal validity and how are they regulated by Vietnamese law? The Newsletter herein shall illumine the aforementioned question.

1. Definition of e-signature and digital signature

An e-signature is established in the form of words, letters, numerals, symbols, sounds or other forms by electronic means, logically attached or associated with a data message and capable of certifying the person who has signed the data message as well as the approval of such person to the content of the signed data message.

E-signatures are commonly used in electronic transactions with the purpose of certifying the author signed the data. An electronic signature is an alternative to an individual's or business's handwritten signature and may be certified by e-signature certification service providing organizations.

Digital signature is a form of e-signature created by the transformation of a data message using asymmetric cryptography in which those who have initial data messages and the public key of the signer could be determined exactly:

  • The aforementioned transformation is created by the correct private key corresponding to public key in the same key pair;
  • The integrity of the content of data messages since the transformation discussed herein is implemented.

Additionally, it is regarded that a digital signature is a form of e-signature created with digital authentication to secure information and documents.

Hence, it is self-evident that the similarity of e-signature and digital signature is that they can replace traditional handwritten signatures while also being used in online transactions. However, innumerable persons still confuse these two concepts. The following section shall discriminate and analyze the distinctive traits of the two types of signatures hereof.

2. Comparison e-signatures and digital signatures

 

Criteria

E-signatures

Digital signatures

Legal basis

Law on E-transactions 2005

Decree No. 130/2018/ND-CP

Nature

A e-signature could be any symbol, image, process attached to a message or document that indicates the identity of the signer and the act of consenting to it.

A digital signature is a form of electronic signature intended to secure the signer's data.

Legal validity

The legal validity of an e-signature is divided into two cases, including the legal validity of an electronic signature as a signature and an electronic signature as a seal. Specifically:

-  In case the law requires a document to be signed, such requirement with respect to a data message shall be considered having been met if an e-signature used for signing such data message satisfies the following conditions:

+ The e-signature permits of identifying the signatory and indicating his/her approval of the contents of the data message;

+ E-signatures must be secure and not be tampered with when creating e-signatures

- In case the law requires a document to be stamped with seal of the concerned agency or organization, such the document is considered valid if the signed e-signature (as a seal) satisfying the following conditions:

+ E-signature creation data are attached only to the signatory in the context that such data are used;

+ E-signature creation data are under the control of only the signatory at the time of signing;

+ All changes to the e-signature after the time of signing are detectable;

+ All changes to the contents of the data message after the time of signing are detectable.

In case the law defines that a document required to be signed, the requirement for a data message is considered as met if the data message is signed with digital signature.

In case the law defines that a document required to be stamped by the agency, organization, such requirement for a data message is considered as met if the data message is signed by digital signature of the agency or organization.

Foreign digital signatures and digital certificates licensed in Vietnam as prescribed in Chapter V of this Decree are legally valid and effective as digital signatures and digital certificates granted by public certification authorities of Vietnam.

Note: The digital signatures is adequately secured according to the provisions of Vietnamese law.

Feature

Verify a document

Securing a document

Security

Effortless to tampered

High level of safety

 

 

 

3. How is an e-contract considered to have full legal validity?

E-contracts mean contracts established in the form of data messages (the information is created, sent, received and stored electronically).

Bases for evaluating a contract to have full legal validity:

Participant 

Participants in the transaction have legal personality and/or legal capacity in conformity with such transaction.

Will

In essence, an e-contract is similar to a regular contract, is an agreement between the contracting parties and is not illegal, not in the cases of invalid transactions.

Format

The form of an e-contract is created, sent, received and stored electronically (not in writing, words or actions like a regular contract).

Content

Chapter 4 of the Law on e-transactions does not clearly specify the content of the e-contract, so the content of the contract according to the Civil Code 2015:

“Article 398. Contents of contracts

2. A contract may have the following contents:

a) Subject matter of the contract;

b) Quantity and quality;

c) Price and method of payment;

d) Time limit, place and method of performing the contract;

dd) Rights and obligations of the parties;

e) Liability for breach of contract;

g) Methods of settlement of disputes.”

An e-contract must also satisfy 07 contents like a traditional contract, besides that additional issues such as technical requirements, certification, conditions to ensure integrity and confidentiality related to such e-contracts.



 

 

Above is DHT Law Firm’s legal advice on the regulation of Vietnamese law on e-signatures, digital signatures and e-contracts. If you have any questions or concerns, please contact us for timely and quality support.