Electronic Signature FAQ
Electronic signature: comfortable scary or convenient, but scary?
Tired of signing documents in paper form? It seems that the electronic signature has long been entered, but still scary. With paper somehow safer. Or not?
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This information is in electronic form, which is attached to other information in electronic form (signed information) or otherwise associated with such information and is used to determine the person signing the information (this is the formula of the Electronic Signature Act - Article 2).
What can be summarized from the above? Right! The fact that the laws we write without caring about the user. Let's try to make it easier to understand.
An electronic signature is information to an electronic document that allows you to determine who signed it.
Nothing. You prepare the contract as usual. Only in the contract itself, you must include the conditions for the use of electronic signatures or enter into a separate Agreement (see below).
Signature can be not only handwritten, hand on paper. A signature can be any analogue of a handwritten signature, including an electronic signature.
Electronic signature is of two types: simple and enhanced. Reinforced can be skilled and unskilled. We leave them, we are interested in the one that is simpler.
A simple electronic signature is a signature that, through the use of codes, passwords or other means, confirms the fact that an electronic signature has been generated by a certain person.
Yes maybe. It is necessary to stipulate in the Agreement on the Use of Electronic Signatures, concluded between the participants of the electronic interaction, that all e-mails originating from the electronic addresses of the parties specified in the Agreement are considered to be signed with a simple electronic signature - an electronic address (e-mail).
Password and login from the account in the Internet service.
This is a unique sequence of characters designed to create an electronic signature. Translated into Russian, this is the password to the mail or account of the Internet service.
An electronic document is considered to be a signed simple electronic signature if one of the following conditions is met:
- or (1) a simple electronic signature is contained in the electronic document itself;
- or (2) the simple electronic signature key is applied in accordance with the rules established by the operator of the information system, using which the electronic document is created and / or sent, and the electronic document created and (or) sent contains information indicating the person on whose behalf the electronic document was created and (or).
The parties must agree on the possibility of signing the contract with an electronic signature and stipulate that an analog of a handwritten signature will be an electronic signature:
No, the legal force is the same. Electronic signature is one of the analogues of a handwritten signature and, with proper registration, there is no difference in the legal force of the documents.
The law clearly prohibits the signing of electronic documents containing state secrets with a simple electronic signature.
Unfortunately not. If the seal is required in accordance with the law or business practice, then only a strengthened electronic signature can replace the seal and a handwritten signature.
Yes you can.
Yes you can. Electronic signatures created in accordance with foreign law and international standards are recognized in Russia (Article 7 of the Law on Electronic Signature).
No, this is one of the types of the written form of the contract in accordance with paragraph 2 of Article 434 of the Civil Code of the Russian Federation, and not an independent form of contract.
Wording example
The parties have agreed to use for signing this contract an electronic signature. The contract is concluded in writing through the exchange of electronic documents transmitted via communication channels, allowing to reliably establish that the document originates from the party to the contract.
The Parties recognize the legal force behind electronic documents - letters sent by the parties to each other from the email addresses specified in this Agreement. Access to the Parties' e-mail is password protected and the Parties undertake to maintain their confidentiality.
In the details of the contract specify the email address and the party to the contract, which uses this address as an electronic signature. Judicial practice and specialists consider corporate addresses as more reliable with indication of company names of counterparties. In fact, you can use public free mail services, but from a corporate address the conclusion of a contract looks really more logical.
This is not necessary, but for your own confidence, and especially the confidence of your accountant, you can print a document and exchange signed scans.
This is still rather a legal exotic, but if all the above conditions are met, then yes. The problem may arise with evidence, since some messengers do not store user correspondence on their servers. This means that the evidence will be stored only on the devices of each of the parties. So, there will be a reason to doubt the accuracy of these messages. In such cases, you can resort to duplicate emails.
The requirements of tax and other regulatory authorities on the signing of documents on paper and the binding nature of handwritten signatures are not based on law. Moreover, they are contrary to the law, namely the principle of using electronic signature (art. 4 of the Law on electronic signature).
The law provides for various options for concluding contracts in writing. One of them is the exchange of electronic documents, including by e-mail (links to the law are taken above and sent to the accountant and tax).
In some cases, a copy of the contract is sufficient for reporting. If you include copies of the signature and seal in electronic documents, then the tax may not even understand that the contract has been concluded through the exchange of electronic documents and it will not have corresponding claims.
Since the accuracy of the email of each of the parties can still be questioned under certain conditions, would it not be better to place the agreement on the resource of a third party independent of the parties? A contract to sign with an electronic signature is not in the form of an e-mail, but with a login and password to enter the account of the user of the Internet service. This type of electronic signature is expressly provided for by the Federal Law “On Electronic Signature” (paragraph 2 of Article 5 of the Law on Electronic Signature).
Such solutions already exist, for example, on the site fl.ru and in the service “Contracts” of WebMoney Arbitration. The service allows WebMoney users to upload their contract to the server and sign it with an analogue handwritten signature.
This is also a way to conclude an agreement in electronic form. For the validity of such agreements, lawyers have already developed a number of recommendations.
(c) Kirill Mityagin
Tired of signing documents in paper form? It seems that the electronic signature has long been entered, but still scary. With paper somehow safer. Or not?
')
What is an electronic signature?
This information is in electronic form, which is attached to other information in electronic form (signed information) or otherwise associated with such information and is used to determine the person signing the information (this is the formula of the Electronic Signature Act - Article 2).
What can be summarized from the above? Right! The fact that the laws we write without caring about the user. Let's try to make it easier to understand.
An electronic signature is information to an electronic document that allows you to determine who signed it.
How does an e-signature contract differ from the usual?
Nothing. You prepare the contract as usual. Only in the contract itself, you must include the conditions for the use of electronic signatures or enter into a separate Agreement (see below).
What are the types of signatures and electronic signatures?
Signature can be not only handwritten, hand on paper. A signature can be any analogue of a handwritten signature, including an electronic signature.
Electronic signature is of two types: simple and enhanced. Reinforced can be skilled and unskilled. We leave them, we are interested in the one that is simpler.
What is a simple electronic signature?
A simple electronic signature is a signature that, through the use of codes, passwords or other means, confirms the fact that an electronic signature has been generated by a certain person.
Can e-mail be a simple e-mail signature?
Yes maybe. It is necessary to stipulate in the Agreement on the Use of Electronic Signatures, concluded between the participants of the electronic interaction, that all e-mails originating from the electronic addresses of the parties specified in the Agreement are considered to be signed with a simple electronic signature - an electronic address (e-mail).
What are some other types of simple electronic signatures?
Password and login from the account in the Internet service.
What is an e-signature key?
This is a unique sequence of characters designed to create an electronic signature. Translated into Russian, this is the password to the mail or account of the Internet service.
Under what conditions does an electronic signature work?
An electronic document is considered to be a signed simple electronic signature if one of the following conditions is met:
- or (1) a simple electronic signature is contained in the electronic document itself;
- or (2) the simple electronic signature key is applied in accordance with the rules established by the operator of the information system, using which the electronic document is created and / or sent, and the electronic document created and (or) sent contains information indicating the person on whose behalf the electronic document was created and (or).
What conditions should be included in the agreement on the use of a simple electronic signature?
The parties must agree on the possibility of signing the contract with an electronic signature and stipulate that an analog of a handwritten signature will be an electronic signature:
- the contract must indicate that the electronic document is accompanied by an electronic signature;
- The agreement on the use of electronic signatures (hereinafter - the Agreement) can be included in the contract or make it a separate agreement on the use of electronic signatures;
- in the Agreement, it is necessary to provide rules for determining the person signing the document so that you can accurately match the electronic signature and a specific person - the party to the contract;
- the Agreement should provide for the obligation of the parties to maintain the confidentiality of their electronic signature (to store the password, not to transfer to third parties, etc.), and in case of loss of the password or access to the e-mail address, inform the other party immediately. Until such a message is received, all outgoing parties that have lost access to the mail will still be considered her electronic signature.
Does the legal force of a document signed with an electronic signature differ from a regular document on paper?
No, the legal force is the same. Electronic signature is one of the analogues of a handwritten signature and, with proper registration, there is no difference in the legal force of the documents.
What documents can not be used to sign a simple electronic signature?
The law clearly prohibits the signing of electronic documents containing state secrets with a simple electronic signature.
Does a simple electronic signature replace the seal?
Unfortunately not. If the seal is required in accordance with the law or business practice, then only a strengthened electronic signature can replace the seal and a handwritten signature.
Can I stop using print? Like Medvedev canceled the seal?
Yes you can.
Is it possible to electronically sign an agreement with a foreign person?
Yes you can. Electronic signatures created in accordance with foreign law and international standards are recognized in Russia (Article 7 of the Law on Electronic Signature).
A contract concluded via the Internet (for example, by e-mail) is an independent electronic form of a contract?
No, this is one of the types of the written form of the contract in accordance with paragraph 2 of Article 434 of the Civil Code of the Russian Federation, and not an independent form of contract.
Wording example
The parties have agreed to use for signing this contract an electronic signature. The contract is concluded in writing through the exchange of electronic documents transmitted via communication channels, allowing to reliably establish that the document originates from the party to the contract.
The Parties recognize the legal force behind electronic documents - letters sent by the parties to each other from the email addresses specified in this Agreement. Access to the Parties' e-mail is password protected and the Parties undertake to maintain their confidentiality.
In the details of the contract specify the email address and the party to the contract, which uses this address as an electronic signature. Judicial practice and specialists consider corporate addresses as more reliable with indication of company names of counterparties. In fact, you can use public free mail services, but from a corporate address the conclusion of a contract looks really more logical.
Do I need to sign the document with a “live signature” and send a scan with a signature and stamp?
This is not necessary, but for your own confidence, and especially the confidence of your accountant, you can print a document and exchange signed scans.
Can I enter into a contract in Skype, WhatsApp, Viber, Telegram, etc.?
This is still rather a legal exotic, but if all the above conditions are met, then yes. The problem may arise with evidence, since some messengers do not store user correspondence on their servers. This means that the evidence will be stored only on the devices of each of the parties. So, there will be a reason to doubt the accuracy of these messages. In such cases, you can resort to duplicate emails.
And what I will represent in tax - your computer or the password from mail? (You already understood that the question is from the accounting department)
The requirements of tax and other regulatory authorities on the signing of documents on paper and the binding nature of handwritten signatures are not based on law. Moreover, they are contrary to the law, namely the principle of using electronic signature (art. 4 of the Law on electronic signature).
The law provides for various options for concluding contracts in writing. One of them is the exchange of electronic documents, including by e-mail (links to the law are taken above and sent to the accountant and tax).
In some cases, a copy of the contract is sufficient for reporting. If you include copies of the signature and seal in electronic documents, then the tax may not even understand that the contract has been concluded through the exchange of electronic documents and it will not have corresponding claims.
Is it even more convenient? Can!
Since the accuracy of the email of each of the parties can still be questioned under certain conditions, would it not be better to place the agreement on the resource of a third party independent of the parties? A contract to sign with an electronic signature is not in the form of an e-mail, but with a login and password to enter the account of the user of the Internet service. This type of electronic signature is expressly provided for by the Federal Law “On Electronic Signature” (paragraph 2 of Article 5 of the Law on Electronic Signature).
Such solutions already exist, for example, on the site fl.ru and in the service “Contracts” of WebMoney Arbitration. The service allows WebMoney users to upload their contract to the server and sign it with an analogue handwritten signature.
And the so-called "contract-offer" on the sites?
This is also a way to conclude an agreement in electronic form. For the validity of such agreements, lawyers have already developed a number of recommendations.
- The user should be provided with the opportunity of preliminary acquaintance with the terms of such a contract before the contract is deemed to be concluded.
- In this case, it is desirable that the “Agree” button is located at the end of the agreement text and can only be activated if the entire text is scrolled from beginning to end.
- Strengthen the expression of consent of the person with the terms of the agreement by adding the phrase “I have read and agree with the terms of the Agreement”
- The user should be able to refuse to accept the terms of the Agreement and, accordingly, from the transaction. Make the button “Refuse” or “Refuse to conclude an Agreement and use the Service”
- Acceptance of the terms of the agreement should be from a technical point of view a necessary condition for access to the Service. Without the user's express consent with the terms of the Agreement, further registration and use of the Service is impossible
- It is extremely important to provide the ability to print and / or save the text of the Agreement to the user's disk or send to the user's email. These agreements do not apply on the territory of Russia, but we recommend to take them into account, since (1) the Service operates on the Internet and (2) Russian legislation and law enforcement practice in general develops with some delay, similar to the practice of the European Union and the USA
- Include links to the Agreement and its main conditions in the emails sent to the user during registration, as well as in other messages from the Service. When amending the terms of the Agreement, make a mailing to all users.
- When a fee is charged for using the Service, the “Agree” button should be redone into “Agree with the obligation to pay”
(c) Kirill Mityagin
Source: https://habr.com/ru/post/296456/
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