eSignature Legality Guide

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Under the ESL, an "electronic signature" refers to electronic data included in or attached to a data message, which can identify the signer and confirm their acknowledgment of the message's content. A data message is defined as information that is created, sent, received, or stored by electronic, optical, magnetic, or similar means.

“Reliable” electronic signatures are considered legally equivalent to handwritten signatures or seals. To be deemed reliable, an electronic signature must satisfy these four criteria:

• The signature creation data are, in the context of use, uniquely linked to the signer and to no one else;
• At the time of signing, the signature creation data were solely controlled by the signer and not by others;
• Any changes to the electronic signature after signing can be detected; and
• If the purpose of the signature requirement is to ensure the integrity and completeness of the information, any changes to the information after signing must also be detectable.

China also permits the use of “electronic certificate-based signatures,” commonly known as digital signatures. While the ESL does not specifically define this term, it generally refers to electronic signatures that are verified by third-party digital certificate service providers to ensure compliance with legal standards. These providers must be approved by the relevant regulatory authorities in China before offering digital certification services.

In China, most documents can be executed electronically. However, there are three main exceptions (ESL, article 3):

(1) documents involving personal relationships such as marriage, adoption, and inheritance;

(2) documents related to the discontinuation of public utility services, including water, heat, gas, and electricity; and

(3) other situations where electronic documentation is restricted by laws or administrative regulations.

Courts in China generally regard an electronic signature as reliable if it is certified by an Electronic Certification Services Provider that has been approved by the relevant regulatory authorities. If parties opt not to use a pre-approved provider, they bear the responsibility of proving the reliability of the electronic signature.

Key court cases addressing electronic signatures in China include:

• (2008) Zhe Min Er Zhong Zi No. 154
• (2011) Jin Yi Shang Chu Zi No. 3006
• (2011) Hang Bin Shang Chu Zi No. 178
• (2015) Shen Fu Fa Min Er Chu Zi No. 1164
• (2016) Yun 0111 Min Chu No. 3711