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 and last amended in 2019. Since then, the country has seen increasing use of electronic signatures, especially in online commercial business. The Chinese Government has made great strides in promoting 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. Electronic signatures are deemed to be reliable if they meet these four conditions:
The law allows those involved in a transaction to agree to use the form of electronic signature that satisfies their own reliability requirements. However, it is recommended that the four conditions above set the baseline in terms of restrictiveness for any agreed upon reliability requirements.
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(amended in 2015); and Measures for the Administration of Cipher Codes for Electronic Certification Services (amended in 2017). 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://www.miit.gov.cn/zwgk/zcwj/wjfb/tg/art/2021/art_a5c322f87dc6467d92f847aeb0400c62.html).
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.
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:
For documents or agreements in civil activities, parties may agree to use, or not to use, electronic signatures.
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