The legality of electronic signatures in China
Overview of Electronic Signature Law
The People’s Republic of China (“China”) enacted the Electronic Signature Law (“ESL”) in 2004, with significant amendments made in 2015 and 2019. The ESL stipulates that as long as the parties agree to use an electronic signature, the legal validity of a document shall not be denied solely because it is in electronic form (Article 3, ESL). In March 2020, China’s Ministry of Human Resources and Social Security issued the Notice on Issues Related to Signing Electronic Labor Contracts.
Notable changes to the ESL since 2020: None.
Permitted Types of Electronic Signatures
The ESL defines an “electronic signature” as data in electronic form that is attached to a data message and used to identify the signatory and indicate the signatory’s approval of the contents of the data message. A data message refers to information generated, sent, received, or stored via electronic, optical, magnetic, or similar means.
A “reliable” electronic signature has the same legal effect as a handwritten signature or seal. To be deemed reliable, an electronic signature must meet all four of the following conditions:
The creation data of the signature is exclusively associated with and used by the signatory in the context in which it is used;
At the time of signing, the creation data of the signature is exclusively controlled by the signatory;
Any changes to the electronic signature after signing are detectable; and
If the law requires a signature to ensure the integrity and authenticity of information, any modifications to the data message after signing must also be detectable.
China also permits the use of “certificate-based electronic signatures,” commonly referred to as digital signatures. Although the ESL does not explicitly define “certificate-based electronic signatures,” the term generally refers to electronic signatures verified by third-party digital certificate service providers, which certify that the signature meets applicable legal requirements. These third-party providers must be pre-approved by Chinese regulatory authorities.
Documents That Can Be Electronically Signed
Most documents in China can be signed electronically. However, there are three specific exceptions (Article 3, ESL):
Documents involving personal relationships such as marriage, adoption, and inheritance;
Documents involving the termination of public utility services such as water, electricity, gas, or heating;
Other circumstances where laws or administrative regulations prohibit the use of electronic documents.
Further Guidance
If an electronic signature is certified by a service provider pre-approved by Chinese regulators, Chinese courts generally recognize the signature as reliable. If the parties do not use a pre-approved service provider, then the burden of proving the reliability of the electronic signature falls on the parties involved.
Key Case Law
Notable Chinese case law involving the use of electronic signatures includes:
(2008) Zhejiang Min Er Zhong Zi No. 154
(2011) Tianjin Yi Shang Chu Zi No. 3006
(2011) Hangzhou Bin Shang Chu Zi No. 178
(2015) Shenzhen Fu Fa Min Er Chu Zi No. 1164
(2016) Yunnan 0111 Min Chu No. 3711