Electronic Signature Laws & Regulations - China

The key legislation on electronic signatures in China (excluding Hong Kong, Macau and Taiwan) is the Electronic Signature Law of the People’s Republic of China which was first published in 2004. Since then, the country has seen increasing use of electronic signatures, especially in online commercial business. The Chinese Government recently started to promote e-government services, which will also increase the use of electronic signatures in people’s dealings with government departments.

The E-Signature law uses the term “electronic signature” to cover both simple electronic signatures and electronic signatures that need to be certified by a third party.

According to the E-Signature Law, “reliable” electronic signatures have the same legal validity as handwritten signatures or stamps. The law allows those involved in a transaction to agree to use the form of electronic signature that satisfies their own reliability requirements, but if there is no agreement, electronic signatures are deemed to be reliable if they meet these four conditions:

• the data that creates the electronic signature is only owned by the signer when used for electronic signatures;
• the data that creates the electronic signature is only controlled by the electronic signer at the time s/he is creating the signatures;
• any alteration made to an electronic signature after signing is discernible; and
• any alteration made to the contents and format of the data used to create the electronic signature after signing is discernible.

Whether a specific electronic signature satisfies these requirements will ultimately be determined by the court based on a comprehensive review of the evidence. However, a court is inclined to consider an electronic signature that has been verified with a digital certificate as prima facie evidence that the signature is authentic and valid.

The E-Signature Law does not specify when an electronic signature needs to be certified by a third party. In practice, it is generally accepted that if an electronic signature can be verified through itself – for example, if it contains biometric identification – it does not have to be certified. While all electronic signatures must meet the same reliability requirements, digital certificates may enhance proof of reliability.

The following regulations apply to providers of certification services when transacting parties agree to use electronic signatures certified by a third party: Measures for the Administration of Electronic Certification Services; and Measures for the Administration of Cipher Codes for Electronic Certification Services. Additionally, service providers that issue digital certificates to verify electronic signatures are required to obtain a license issued by the Ministry of Industry and Information Technology. A list of the qualified service providers can be found at the website of the Ministry of Industry and Information Technology (see: https://zwfw.miit.gov.cn/miit/resultSearch?categoryTreeId=318).

Chinese courts and judges are becoming more familiar with the laws around electronic signatures, and there have been a number of Chinese court cases that have upheld the validity of documents signed electronically.

Special considerations

In China, storage and processing of electronic signature data may be subject to the Cybersecurity Law of the People's Republic of China. In addition, China’s authorities often refer to the Guidance for Protection of Personal Information Safety on the Internet, which states that personal information collected and produced within the territory of China should be stored within China. 

Transacting with public sector entities

Chinese law does not include any special requirements or restrictions for using electronic signatures in dealings with government entities in China, but individual government entities at different levels may have their own.

Use cases that generally require a traditional signature

There are certain situations where electronic signatures cannot be used under the Chinese E-Signature Law:

1. Documents or agreements concerning personal relationships such as marriage, adoption or inheritance;
2. Documents or agreements concerning suspension of public utilities such as supply of water, heat or gas; and
3. Other circumstances where laws or regulations provide that electronic documents are not applicable.

For documents or agreements in civil activities, parties may agree to use, or not to use, electronic signatures.