Electronic signature FAQ

    Electronic signature: scary convenient or convenient, but scary?



    Tired of signing paper documents? It seems that an electronic signature has been introduced for a long time, but it's still scary. With paper, it’s somehow more reliable. Or not?



    What is an electronic signature?


    This is information in electronic form, which is attached to other information in electronic form (of signed information) or otherwise associated with such information and is used to determine the person signing the information (this is the formula of the Law on Electronic Signature - Article 2).
    What can be summarized from the above? Right! The fact that we write laws without caring for 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.

    What is the difference between a contract signed with an electronic signature and a usual one?


    Nothing. You are preparing the contract as usual. Only in the contract itself should you include conditions for the use of electronic signatures or conclude a separate Agreement (see below).

    What are the types of signatures and electronic signatures?


    The signature can be not only autographic, handwritten on paper. The signature may be any analogue of a handwritten signature, including an electronic signature.
    There are two types of electronic signatures: simple and enhanced. Reinforced can be qualified and unskilled. We will 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 is generated by a certain person.

    Can an email be a simple electronic signature?


    Yes maybe. It is necessary to stipulate in the Agreement on the use of electronic signatures concluded between participants in electronic interaction that all emails coming 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 other types of simple electronic signatures are there?


    Password and login from the account in the Internet service.

    What is an electronic signature key?


    This is a unique sequence of characters designed to create an electronic signature. Translated into Russian, this is the password for the mail or the Internet service account.

    Under what conditions is an electronic signature valid?


    An electronic document is considered to be signed by a simple electronic signature if one of the following conditions
    is met: - either (1) a simple electronic signature is contained in the electronic document itself;
    - either (2) the key of a simple electronic signature is applied in accordance with the rules established by the operator of the information system using which the creation and (or) sending of the electronic document is carried out, and the created and (or) sent electronic document contains information indicating the person, on behalf of which an electronic document was created and (or) sent.

    What conditions should be provided for 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 the electronic signature will be the analogue of a handwritten signature:

    • the contract should indicate that the electronic document is accompanied by an electronic signature;
    • An agreement on the use of electronic signatures (hereinafter - the Agreement) can be included in the agreement 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 it can accurately match the electronic signature and the specific person - the party to the contract;
    • the Agreement must provide for the obligation of the parties to maintain the confidentiality of their electronic signature (to keep the password, not to transfer it to third parties, etc.), and in case of loss of the password or access to the email address, immediately inform the other party. Until such a message is received, all parties coming from a party that has lost access to mail will continue to be considered its electronic signature.


    Is the legal effect of a document signed with an electronic signature different from an ordinary document on paper?


    No, the legal force is the same. An electronic signature is one of the analogues of a handwritten signature and, when properly executed, there is no difference in the legal force of documents.

    To sign which documents you can not use a simple electronic signature?


    The law explicitly prohibits the signing of electronic documents containing state secrets with a simple electronic signature.

    Does a simple electronic signature replace print?


    Unfortunately not. If printing is required in accordance with law or business practice, printing and a handwritten signature can only be replaced by an enhanced electronic signature.

    Can I refuse to use printing? Like Medvedev canceled the press?


    Yes you can.

    Is it possible to electronically sign a contract 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 Signatures).

    Is a contract concluded via the Internet (for example, by e-mail) an independent electronic form of the contract?


    No, this is one of the types of 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 the contract.

    Example of wording

    The parties agreed to use an electronic signature to sign this agreement. The contract is concluded in writing by exchanging electronic documents transmitted via communication channels, which make it possible to establish reliably that the document is coming from the party under the contract.
    The parties recognize the legal force of electronic documents - letters sent by the parties to each other from the email addresses specified in this Agreement. Access to the email of the Parties is protected by passwords and the Parties undertake to maintain their confidentiality.

    In the details of the contract indicate the email address and the party to the contract that uses this address as an electronic signature. Judicial practice and specialists consider corporate addresses indicating the company names of counterparties to be more reliable. In fact, you can use publicly available free email services, but from a corporate address, concluding a contract looks really more logical.

    Do I need to sign the document with a “live signature" and send a scan with the signature and seal?


    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.

    Is it possible to conclude an agreement in Skype, WhatsApp, Viber, Telegram, etc.?


    This is rather legal exotic, but if all the above conditions are met, then yes. A problem may arise with evidence, as some messengers do not store user correspondence on their servers. This means that evidence will only be stored on the devices of each side. So, there will be reason to doubt the reliability of these messages. In such cases, you can resort to duplicate e-mail messages.

    And what will I represent in the tax - your computer or password from the mail? (you already understood that the question is from accounting)


    The requirements of tax and other regulatory authorities on the signing of documents on paper and the obligatory handwritten signatures are not based on law. Moreover, they contradict the law, namely the principle of using electronic signatures (Article 4 of the Law on Electronic Signatures).

    The law provides for various options for concluding contracts in writing. One of them is the exchange of electronic documents, including by e-mail (we take the links to the law above and send them to the accountant and tax).

    In some cases, a copy of the contract is sufficient for reporting. If you include copies of signatures and stamps in electronic documents, the tax authority may not even understand that the contract is concluded through the exchange of electronic documents and it will not have corresponding claims.

    Is it even more convenient? Can!


    Since the reliability of the email of each of the parties can still be called into question under certain conditions, would it not be better to place the contract on the resource of a third party independent of the parties? And to sign the contract with an electronic signature not in the form of e-mail, but with a username and password to enter the user account of the Internet service. This type of electronic signature is directly provided for by the Federal Law "On Electronic Signature" (Clause 2, Article 5 of the Law on Electronic Signature).
    Such solutions are already available, for example, on the fl.ru website and in the “Contracts” service of the WebMoney Arbitration. The service enables WebMoney users to upload their agreement to the server and sign it with an analog of a handwritten signature.

    And the so-called "offer contracts" on the sites?


    This is also a way to conclude an agreement in electronic form. For the validity of such agreements, lawyers have already made a number of recommendations.

    • The user should be provided with the opportunity to familiarize themselves with the terms of such a contract before the moment the contract is considered concluded
    • At the same time, it is desirable that the “Agree” button be at the end of the text of the agreement and could be activated only 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 to the terms of the Agreement”
    • The user should be able to refuse to accept the terms of the Agreement and, accordingly, to complete 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 expressing consent to the terms of the Agreement, further registration and use of the Service is impossible
    • It is extremely important to ensure the ability to print and / or save the text of the Agreement to the user's disk or send it to the user's e-mail. These agreements do not apply in Russia, but we recommend that you take them into account, since (1) the Service operates on the Internet and (2) Russian legislation and law enforcement practice as a whole develops with some delay, similar to the practice of the European Union and the USA
    • Include links to the Agreement and its basic conditions in emails sent to the user during registration, as well as in other messages from the Service. When amending the terms of the Agreement, do newsletter to all users.
    • When a fee is charged for using the Service, the “Agree” button should be redone into “I agree with the obligation to pay”



    (c) Kirill Mityagin

    Also popular now: