The use of electronic and certificate-based digital signatures is generally accepted in the business community in Taiwan, especially in contracts relating to ecommerce. Under Taiwanese law, an electronic signature is valid and has the same enforceability as a traditional “wet” signature if it meets the legal requirements for validity and isn’t subject to any exemptions.
The use of electronic and digital signatures is mainly governed by Taiwan’s Electronic Signature Act and its Enforcement Rules, as well as administrative regulations from relevant authorities. The Act adopts the general term “electronic signature” as the basis of the legislation; a “digital signature” is a type of electronic signature.
To be legally effective, an electronic signature must meet the following requirements:
1. Content integrity: the content of an electronic document signed with an electronic or digital signature must not be tampered with, altered or changed without the signatory’s authorization.
2. Subsequent reference: an electronic document signed with an electronic or digital signature must remain accessible for subsequent reference by the parties to the document.
3. Mutual consent: the counterparty must consent to the method of signing.
4. Non-exempt: the use of an electronic signature is not prohibited by administrative regulation issued by the competent authority.
5. Other requirements: the competent authority may, at their discretion, require that certain technology be used, or procedures followed.
A legally effective digital signature must meet two more requirements:
6. Qualified by the certificate authority: the digital signature must be qualified by a certificate issued by a certification service provider whose certification practice statement is approved by the Ministry of Economic Affairs. The listing of approved certification service providers is publicly available at: https://gcis.nat.gov.tw/mainNew/subclassNAction.do?method=getFile&pk=690.
7. Valid certificate: the certificate must remain valid and the digital signature not used beyond its registered scope of use.
In general, there is no difference in the enforceability or admissibility of digital and electronic signatures. There are no documents or agreements that can only be signed electronically using a digital signature. Judges are familiar with the laws surrounding the Electronic Signature Act. The Taiwan courts tend to uphold the validity of documents signed with an electronic or digital signature.
In Taiwan, the Electronic Signature Act does not require data to be stored domestically. However, if the electronic signature data contains personal data, Taiwan’s Personal Data Protection Act (PDPA) will apply and certain requirements and exceptions may forbid the processing, transfer or storage of electronic signature data outside Taiwan.
Transacting with public sector entities
There are no special requirements or restrictions for using digital or electronic signatures with government entities in Taiwan. However, the competent authority may require that particular technology or procedures be followed. The possibility also exists that the relevant competent authority may add special requirements or restrictions for using digital or electronic signatures with government entities.
Use cases that generally require a traditional signature
In Taiwan, there are several use cases that generally require a traditional “wet” signature. Additionally, certain competent authorities may issue administrative regulations prohibiting the use of electronic signatures for certain documents or procedures.
The following is a discussion of several industry specific guidelines that outline which documents and use cases can utilize electronic signatures and which are exempted.
1. For legal proceedings:
According to the administrative regulation issued by the Judicial Yuan, in general, the documents of the first and second instance of civil proceedings, (such as the indictment, the preparatory pleadings, the pleadings, the summary of the dispute, the change of the complaint, the petition, the statement, the withdrawal of the pleadings, the petition of appeal) may be signed electronically. However, the following documents are exempted from the use of an electronic signature:
2. For business of banking, insurance, and securities and futures:
According to the administrative regulation issued by the Financial Supervisory Commission, certain documents are exempt from the Electronic Signature Act. Below are a few critical examples:
3. For witnessing:
According to administrative regulation issued by the Ministry of Justice (Fa-Lu-Tzu No.0910800139), notaries have the authority to notarize juristic acts and facts related to private rights or to attest private documents. However, the notarial deeds or deeds of attestation may not be generated in electronic form and shall not be signed or executed electronically.
4. For instruments regarding family law or wills:
The administrative regulation issued by the Ministry of Justice (Fa-Lu-Tzu No.0910800139) requires that instruments regarding family law, such as an application form for marriage, an agreement regarding a prefix of the surname of the spouse, a contract for the holding of matrimonial property, an agreement of adoption, wills and the attachment thereto, and instruments related to inheritance, may not be generated in electronic form and must not be signed or executed electronically.
5. For documents related to real estate:
If a contract is made for the creation, transferring, or altering of rights over the real property, such contract and the notarial deeds thereto may not be generated in electronic form and shall not be signed or executed electronically.
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