Utilities that information technology and modern communication brings helped form the habit of new deals. The parties in the transaction have the tendency to make the exchange of information, contracting and store transaction information in electronic form more often. As a consequence, the use of the signature is created using the method of electronic (or generally called electronic signature) to sign a contract also becoming increasingly more popular.

In the context of Vietnam and many other countries are still applying the measure spacing and social movement restrictions on the global scope to avoid the risk of the spread of the disease Covid-19, tend to use the electronic signature is expected to continue growing in the coming time. Here is the solution appropriate to the parties can sign a contract that does not need to meet face-to-face. 

1. Common use application signature electronic

   Currently, the parties in the transaction can sign the contract by the electronic signatures in 3 ways popular are: signature scan, signature image and digital signatures. The process of signing the contract by the type of electronic signature, this typically is done as follows:

– Digital signature: (i) the parties to use a platform and specialized equipment provided by the company service for digital signature certificate provider in order to create a digital signature; (ii) the digital signature was created after it is inserted in electronic form on the contract should be signed. Signature of little use in the conclusion of the contract value and complex, which is mainly used when the organization filed with the customs declaration, social insurance, tax payment, over the network, issuing electronic invoices and organizations and individuals to make electronic transactions through the banking system.

– Signature scan:(i) the contract be signed print from an electronic data and the sign of each side directly on the paper text of the contract by signature living; and (ii) the contract along with the signature on the contract will be converted into electronic form (for example, by scanning (scanning) and scan (file, data e) of the signed contract, then be sent by electronic mail. Signature scan is used a lot in the contract there are many parties and the parties do not in the same location to be able to co-sign on a copy of the contract. Signature scan are especially common in the contracts related to the transaction, multi-national and foreign elements on the subject.

– Signature image: (i) the person signing insert signature image of the sign in the signature box of the file electronic data of the contract; and (ii) file the electronic data of the contract (signed by the signature image on the electronic contract that) is sent by electronic mail. Signature images are used in contract value not big, but is signed multiple times and repeating, at the same time, who is not in the same location where the contract can print and signed lives.

Fact in a contract worth the large and complex show, signature scan is the most common form, the signature image less common and signature of the few are most popular. On the contrary, digital signatures, more signature scan and signature images in the civil contract has properties consumers.

2. The value of the digital signature, signature scan and signature images as the laws of Vietnam

Legal framework governing electronic signatures, including: the Civil code 2015 (CC 2015); the Law on electronic transactions in 2005 (Law, education and training 2005) and the decree guide include: Decree no. 130/2018/ND-CP on 27/9/2018 of government regulations detailed Law enforcement education and training 2005 about digital signatures and services for digital signature certificate (Decree 130) and Decree of no. 52/2013/ND-CP dated 16/5/2013 of government commerce (Decree 52). CC 2015 regulate all types of transactions and contracts, including the transaction and the contract is signed by the signature of life and the transaction and the contract is concluded through electronic means. Law education and training 2005, Decree 130 and Decree 52 adjust the specific issue of electronic signatures and electronic transactions. 

In general, the law of Vietnam only recognized the validity of the contract shall be made by electronic form and be signed by the digital signature. The validity of the contract to be signed with the signature scan and signature image has not been specified. We show that the conclusion of this form is not allowed or no legal value because it is not specified in the law subjective and not consistent with market practices. Signature scan and signature images have legal value if the signature that expresses the will of the person and the person signing has authority to sign.

2.1. Definitions of electronic signatures

Electronic signature is defined relatively broad and abstract. According to the Law on education and training 2005, “electronic signature” has the following characteristics: (i) established under the form of words, letters, numbers, symbols, sounds, or other forms by electronic means; (ii) is associated or combined in a batch manner logic with electronic contract (for example, under format PDF or Word documents); and (iii) have the ability to validate the signed electronic contract and confirm the approval of that person for the contents of electronic contract is signed.[2] Electronic signatures are legally valid if it satisfies the conditions of the possibility identifier and a high level of reliability, namely: (i) methods to create electronic signature allows verified signer and proved to be approved by the person signing for the content of the contract and (ii) the electronic signature is sufficiently reliable and consistent with the purpose for which the contract is created and sent.[3]

Digital signature

Decree 130 specifies digital signature is a type of electronic signature. Text is signed by the digital signature not required to have a seal.^[4]Digital signature is recognized in sending documents to the court and not the problem of the effect.^[5] To meet the requirements check on the possibility of identity and the level of reliability, the main requirement is the digital signature must be authenticated by the organization providing the service authenticated by the signature of licensed public.[6] As of January 2/2020, there are 15 businesses have been licensed service provider of digital signature authentication in Vietnam and doesn't have any business out of it is foreign legal entities.[7] Currently, no facility, be sure to determine whether the digital signature service, so the business of providing water service provider in Vietnam (such as DocuSign or Adobe Sign, etc.) have been recognized in Vietnam is not, though nor is there any reason policy to remove the service of this business.[8]

Signature scan and signature images

Do not be specified in the Law on education and training 2005, Decree 130 and Decree 52, should the signature scan and signature images are not naturally be regarded as a kind of electronic signatures and contracts are signed scan and signature images in the manner described above do not, of course, have an effect. Although the law has not clearly stated on the signature scan and signature images, but there isn't any reason for policy to not recognize the validity of a contract is signed by the type of electronic signature, and this is also no legal basis to conclude the definition of electronic signatures in Law, education and training 2005 to exclude the signature scan and signature images.

2.2. General provisions of The Civil code 2015

CC 2015 allows the form of the conclusion of various contracts. Specifically, the contract can be concluded by wordsby text or specific behavior.[9] In fact, words or specific behavior is the form of contract conclusion most common in the civil transactions commonly encountered in daily life. For example, people buying items in the supermarket and pay for the item or use the services of transport of passengers, goods (such as taking the bus, aircraft) and pay the ticket price, shipping charges for passengers and cargo.^[10] These transactions don't need to be in writing (should not pose problems about signatures) and purchase invoices, tickets, bills of lading or shipping documents is another proof of conclusion of the contract between the parties. It is important contract is the agreement of the parties, the longer form of the agreement, not necessarily in writing. 

The contract can only be declared invalid due to violation of specified conditions take effect on the form if the law has prescribed. Under the provisions of the existing law, some types of contracts must be in writing (contract of alienation of real estate, construction contracts, etc.). In this case, the additional requirement of notarization, authentication or registration can also be applied (the contract on transfer of real estate must be in writing, signed and notarized). In case the law does not stipulate the contract must be made in writing, the parties may institute leads the discussion by word or by specific behaviors to express the unity of the will, through which constitute the contract are legally binding. 

Related to the form of the written contract, clause 4, Article 400 CC 2015 regulations: “the Time of delivery of the written contract is the time of the last party to sign the text, or by the acceptance form to another is performed on the text.” As such, CC 2015 does not require a signature must be signed live or prohibit the use of electronic signatures. CC 2015 also recognized the “acceptance form to another is performed on the text” and recognition of transactions through electronic means.[11] In fact, we can also meet the case of a contract in writing which do not need to have a signature life of any party. For example, when organizations and individuals registered to use the online services (such as services, electronic banking, the ecommerce website or the services provided content online). To be offered services, right in the first step of the registration process, service, people use the service must accept the terms and conditions of the service provider appears on the screen of the electronic device by tick the “agree” at the end of the terms and conditions. The terms and conditions of this once approved, will become part of the contract between the service user and the service provider, and this contract has not signed the life of any party. Another example is also common is when the individual does not know the word you can use the fingerprint to the contract. When are points only, the contract also create obligations binding on the parties without the signature life of any party.

Thus, if an individual can not sign life is, that person can use a form to accept the other, to express the will approve the entire contents of agreement are shown on the contract documents, as marked on the “agree” on the screen of electronic devices, and point only by fingerprint. As well as the tick the “agree” and points just by fingerprint, signature, scan, and signature image can be considered a form or a form to accept the other. Here, the important thing is acceptance form is shown by the signs separately on the text to help confirm the sign and attest to the approval of the secretary. This is also the spirit of the Law education and training 2005 in the regulation of the definition of electronic signatures and legal validity of electronic signatures.

Form approved by the office also put out a question derivative related to the authority of the person signing. In other words, if one side can have the evidence to prove that the signature scan and signature images show the approval of the sign and the sign authorized signature scan and signature images can totally have value as a signature. Related to this approach, CC 2015 has recognized the parties established “right to represent the surface”. “The right to represent the surface” is established when one party whose actions make the other party believe in a logical way that the party representatives have the authority to represent (or in another aspect, making the other party does not know or may not know is the representative does not have the authority to represent or exceed the scope of representation). Accordingly, CC 2015 accepted “right to represent the surface” when: (i) a party has recognized the transaction; (ii) an inner knowing that she does not object within a reasonable period; or (iii) a party that error led to the people have transaction does not know or may not know about the who was established, the civil transactions with her have no right of representation or exceeding the scope of representation.[12]

In summary, the provisions of the civil code 2015 created the legal basis for the use of the signature scan and signature images for the contract in writing. The transaction process of the party can also help establish authority outwardly when the authority of the person signing is not clear. However, what is more important is the project charter and the judgment of the Court of the supreme people's given in recent time to see the court increasingly considering the nature of the approval rather than the form of approval and this helps to limit the risks of a contract is void when there are problems related to form of agreement (in which there are problems about the signature). 

3. The approach of The people's court supreme related to the value of the signature electronic

Although there has not been any case law of the court addressed the specific issue of the validity of the contract to be signed with the electronic signature, there was the project charter and the judgment shows that the court Viet Nam thien approach to focus on content (i.e. consider the true intention of the parties in the transaction) rather than forms expressed approval for that content (i.e., consider the form of the contract and signature). In a number of case laws and judgments, the people's Court the supreme ruled that the behavior of the parties in the process of concluding and performing the contract has an important value to determine the will of the parties in the contract and whether the contract was not signed by the parties concerned, that contract is still not disabled. 

Project charter no. 04/2016/AL day 6/4/2016 about dispute hg transfer of land use rights (dispute between Kieu Thi Ty and Chu Văn Tiến with Le Van Ngu –Project charter 04)

Project charter 04, the seller in a contract of transfer of land use rights as husband and wife, but there's only one her husband sign the contract. However, the wife has to know about this transaction did not object to the transaction and used the money gained from the transfer for various purposes, including to donate children. Therefore, the people's Court, supreme has declared that the contract is not void although there have been violations of the requirement to have a signature (in particular, who is the wife did not sign this agreement) by the wife did not object to the contract and the wife used the money gained from the alienation proved to have the approval of the wife to contract.

Project charter no. 07/2016/AL day 17/10/2016 about recognition hg sales agreement is established before 1 January 7, 1991(dispute between Nguyen Dinh River, Nguyen Thi Hong, Nguyen Thi Huong with Đỗ Trọng Thanh Thi Nguyet Vuong Chi Tuong Vuong Chi Thang Vuong Bich Van Vuong Bich Case – Project charter 07)

Project charter 07, in the contract of purchase and sale, only the seller and stating the seller has received the full payment. The buyer, however, has yet to sign the contract, but is the contract holder and has the management and use of housing stability in the long time that the seller does not have a dispute that requires money to buy a home. In this case, the contract value determined the buyer has paid enough money for the seller and the will of the purchaser agrees to the contract of sale that house. Therefore, the people's Court, supreme has declared that the house sale and purchase contract is not void and is recognized legal value.

Decision Cassation no. 47/2016/network marketing-GĐT day 29/8/2016 of Tboo spc (disputes between Company LIMITED Huada Furniture Vietnam vwith Jsc insurance PJICO) (Judicial council's decisions 47)

Judicial council's decisions 47, insurance company, has released the contract of insurance for the insured but have not received the contract signed by the insured. The contract allows the buyer insurance premium payment within 30 days. Before insurance buyers full payment of the insurance premium, the insured event occurs. The insured then has to pay the premium within the time limit and citing the insurance contract to ask the insurance company for payment. However, the insurance company denied that, the insurance contract does not exist. In this case, the Court supreme people recognized the existence of the insurance contract between the policyholder and the insurance company by the buyer has paid the full amount of insurance premiums under the policy, although the insured did not sign the insurance contract.

According to the project charter and judgment on the signature doesn't matter to determine the validity of a contract. This is a growing trend very notable in the practical application of the recent law of the court.

In summary, although the law has not clearly stated on the signature scan and signature images, but there isn't any reason for policy to not recognize the validity of a contract is signed by the type signature, scan, signature images, or other electronic signature, especially when the contract can also be concluded verbally and behavior; also there is no legal basis to conclude the definition of electronic signature specified in the Law on education and training 2005 to exclude the signature scan and signature images. We show that the general provisions of the civil code 2015 to create the legal basis for the use of the signature scan and signature images for the contract in writing. The project charter and judgment of the Court of the supreme people put out in recent times shows, the court increasingly considering the nature of the approval rather than the form of the approval and the signature is not important to determine the validity of a contract. This approach reduces the risk of the contract is invalidated when there is a problem on the form of agreement. This is the approach should continue to be confirmed and replicated in the coming time. This approach helps to limit the contract is declared null and void and promote the signing of the contract by the electronic signatures in particular is the signature scan and signature images. This will help society make use utility that information technology and modern communication brings as well as solve the difficulty of concluding the contract due to the measure spacing and social movement restrictions on the global scope in the context of the spread of the disease Covid-19./.

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[1] Content is presented in the article is the personal opinion of the author and do not necessarily represent the views of company Law LTD YKVN. The authors would like to thank you, sister, Trinh Nguyen Thuy Tien has research and help the author write this article.

[2] Law education and training 2005, Article 21.1.

[3] Law education and training 2005, Article 24.1.

[4] Law education and training 2005, Article 24.2 and Decree 130, Article 8.2.

[5] Resolution no. 04/2016/NQ-HĐTP of The board of judges of the Court the people I date 30/12/2016 hmanual sending, receiving the petition, documents, evidence and level, summons, notice the text in the proceedings by electronic means, Article 7.1.

[6] Decree no. 130, Article 8 and 9.

[7] Viewhttps://www.mic.gov.vn/solieubaocao/Pages/TinTuc/116271/Danh-sach-cac-doanh-nghiep-da-duoc-cap-giay-phep-dich-vu-chung-thuc-chu-ky-so-cong-cong.htmlaccess date 15/5/2020.

[8] Have legal basis in accordance with Articles 8, 9, 11 and 20 of the Decree 130 to assume that the services provided by businesses that provide services abroad may be accepted if the parties agree to use the services and businesses that provide services that meet the standards and requirements technology by the Ministry of information and Communication announced.

[9] CC 2015, Article 119.1.

[10] Commercial law 2005, Article 24.1 and That 74.1 and CC 2015, It 523.1 and The 531.1.

[11] CC 2015, Article 119.1.

[12] CC 2015, Article 142.1 and That 143.1.

(Source: Article to be posted on the Publications the Journal of legislative Studies, no. 10, (410), march 5/2020.

http://www.lapphap.vn/Pages/TinTuc/210533/Ky-ket-hop-dong-thongqua-phuong-thuc-dien-tu.html)