Preliminary Study On Electronic Signatures And Related Law Issues

As a necessary infrastructure of the E-commerce, electronic signature law determines the solution of two critical legal issues. First of all, since electronic signature is closely linked with the statutory writing requirement, it has invoke innovative thinking concerning the traditional legal regime such as validity of legal act and the admissibility of evidences, and would eventually determine the critical issues of cyber-contract conclusion, online payment, etc. On the other hand, the special feature of electronic signature gives rise to another new legal relationship: online certification service relationship, which stemmed out of the verification service provided by a special entity in respect of the genuineness of electronic signatures and signatories. Related issues includes, inter alia, conduct rules of different parties, assessment and allocation of cost and risks, which involve procedural and substantial rules across different legal sectors while at the same time being interactive with each other under the framework of electronic signature law. It is rather self-evident that electronic signature law is very critical.However, in China, legal research and legislation concerning electronic signature is not satisfactory. Considering the important role of electronic signature in the "new economy" and China's legal study in this area, this article, totaling four chapters, intends to go a bit further in the legal aspect of electronic signature, hoping to contribute to the improvement of the current situation in this area.Chapter 1 is an introduction of electronic signature, including the background information of its advent and development, the current technology solutions (focusing on the rudiments of the prevailing digital signature scheme) as well as legislative initiatives of other countries and international organizations. Chapter 2 discusses basics of electronic signature, i.e. definition, function and validity, etc. Grounded on the understanding that electronic signature is introduced as "functional equivalent "of traditional paper-based signature, it is expressed that the concept and legal function of electronic signature could be well defined only based on the proper understanding of the concept and function of traditional signature. Moreover, because of the heavy influence of technology factors, which distinguish electronic signature from its traditional counterparty, deliberate considerations shall be placed on the setting of specific rules while giving proper recognition of the legal effect to electronic signature. Chapter 3 reviews relevant legal issues in connection with certification of electronic signature, including the emerging and process of certificate service, licensing and accreditation of certificate authorities, the conduct code of relevant parties and the cross-broad recognition of electronic signature an certificate.Chapter 4 reviews the current legal system in China and points out the unsatisfactory legislative omission in this area. Combined with a summary of the prevailing principle and other detailed ideas, it is suggested that China should establish its legal framework on electronic signatures in the form of a separate legislation, rather than in the form of law amendments or judicial interpretation.