Electronic signatures are common in South Korea and are generally well accepted in the business community. They are regularly used to sign general business contracts, employment contracts, leasing agreements and other common types of contracts. Under South Korean law, an electronic signature has the same level of enforceability and admissibility as a “wet signature” provided that the electronic signature meets the legal requirements for validity. The law does not distinguish between electronic and certificate-based digital signatures and the terms “electronic” and “digital” are used interchangeably in South Korea. However, the law does distinguish between certified and uncertified electronic signatures.
In South Korea, the legal relationship between electronic documents and electronic transactions executed using electronic signatures is governed by the Framework Act on Electronic Documents and Transactions (FAEDT). The Electronic Signature Act (ESA) sets forth the basic legal framework for using electronic signatures. The ESA defines an electronic signature as a “piece of information in electronic form that is affixed on, or logically combined with, an electronic document in order to identify the signatory and verify that the electronic document has been signed by the said signatory.”
Under the ESA, there are two types of electronic signatures: (1) a certified electronic signature and (2) an uncertified electronic signature. A valid certified electronic signature is one that is based on a public key certificate, and satisfies the following requirements:
A public key certificate (as is required for a certified electronic signature) is a certificate that is issued in accordance with Article 15 of the ESA by a licensed certificate authority designated by the Ministry of Science and ICT (MOSIT). Designation of a licensed certificate authority is officially announced on the South Korean government’s official newspaper (http://www.mois.go.kr/frt/sub/a05/gwanboMain/screen.do). There are currently six licensed certificate authorities in South Korea:
An uncertified electronic signature is any electronic signature other than a certified electronic signature. Uncertified electronic signatures are valid to the extent agreed between the contracting parties.
The legal effect of certified and uncertified electronic signatures is different under the ESA, although both are considered valid. Where an electronic document is signed with a certified electronic signature, the law presumes that the signature is the “Signature or Seal” of the signatory of the document, and that there has been no alteration in the contents of the document since it was signed electronically. An uncertified electronic signature is only presumed to be the signatory’s Signature or Seal as agreed between the contracting parties.
The laws around certified and uncertified electronic signatures are well understood by South Korean courts and judges, and a number of South Korean court cases have upheld the validity of documents signed electronically.
South Korean law does not require electronic signature data to be stored only within South Korea. However, if the data contains personal information, then certain requirements apply under Personal Information Protection Act of Korea (PIPA) before that data can be disclosed to an overseas recipient.
Neither the FAEDT nor the ESA expressly prohibit any documents or agreements from being signed electronically. However, under the FAEDT, an electronic document may be denied legal effect if another applicable law or regulation provides the document cannot be signed or executed electronically. The only examples of such cases provided under the FAEDT are:
Under the ESA, when the applicable law requires the Signature or Seal of the signatory on a document, a certified electronic signature must be affixed on a document (ESA, Article 3(1); Certified e-Document Authority Guide by MOSIT). Examples of such cases include:
Transacting with public sector entities
There are no special requirements unless specifically required by another applicable law or regulation.
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