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Chinese
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To
establish a safe and reliable network environment and to ensure
that the data will not be forged, revised or stolen during the
process of network transmission, to examine the identity of both
transaction parties and to prevent against denial of the fact of
completed transaction afterwards.
This is the key to whether E-Government and E-Commerce can
be popular in all areas. In
order to expedite a safe electronic transaction system, government
and civilians are sparing their utmost effort in utilization of
modern access code technology to establish electronic
certification system of various areas and to provide identity
certification and transaction certification service so as to
improve the confidence of user.
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Traditional
communication and transaction behavior employ written document
(such as contract) and signature, seal to confirm related rights
and obligations. In
the network environment, E-Government and E-Commerce has to rely
on electronic document and electronic signature as the basis of
communication and transaction. However, present regulation does
not clearly standardize the legal position of electronic document
and electronic signature and in order to cope with the daily
prosperous development of digital economy environment, it is
really urgent at present to establish a legal system for
electronic signature. Therefore, for various countries in the
world, in order to establish the safety and reliability of
electronic transaction environment and popular application of
E-Commerce, they all actively expedite legislation similar to
electronic signature. For
example, Germany (August, 1997), Malaysia (1997), Italy (March
1997), Singapore (June 998), Korea (legislated in December 1998
and was effective in July 1999), Hong Kong (January 2000), Japan
(may 2000) US Federation (June 2000) and various states (40 more
states had already legislated) and for EEC, formulation of
electronic signature order has been completed (January 2000) and
various member countries like England (July 2000), France (March
2000) already completed the coordination of domestic law within
the member states before July 2001 based on the standard of
orders.
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| II.
Principle of legislation |
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In
order to cooperate with the development of national data
communication infrastructure, in 1997 in the country, for the
first time, MOEA commissioned Technology and Legal Center of
Institute for Information Industry to conduct research on digital
signature law and to suggest government how to formulate digital
signature law as soon as possible so as to fix the legal position
of electronic signature and electronic document and to establish a
management system for electronic Certificate Authority and to
define the authority and responsibility of the Certificate
Authority, CA, to establish system of cross state certification in
order to solve insufficiency or uncertainty of present legal
standard. In
reference to cases of legislation by various countries and
principle of legislation of electronic signature stipulated by
international organizations of United Nations and EEC etc., the 『Electronic
signature law』shall be formulated.
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Hereunder
are a brief description on important legislation principle of this
law:
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(1)
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Principle
of neutral technology: Any technology that can ensure the
integrity of the information during the process of
transmission or storage and can examine the identity of
the user can all be used to produce electronic signature
and will not adopt 「asymmetric」 form」confidentiality
addition technology as the limit of the foundation of 「digital
signature」 so as not to block
the development of application of other technology.
This law adopts「electronic
signature」suggested by
international organization including United Nations and
EEC as the basis of legislation instead of basing on
"digital signature" as limit so as to respond to
innovation development of electronic examination
technology such as bio-technology. For electronic
signature or electronic document produced by any
electronic technology, as long as the function and written
document and signature and seal is equivalent, they can
all be used.
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(2)
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Principle
of contract liberty: Regarding electronic transaction
behavior in civilian area, it is appropriate that under
the principle of contract liberty, both transaction
parties concerned shall agree between themselves to adopt
what kind of suitable safety technology, procedure and
method to produce electronic signature or electronic
document as the basis that both parties can mutually trust
and abide and that shall be the basis of related legal
responsibility. Therefore,
it is not appropriate to intervene the contract principle
of both transaction parties with public authority of the
government. Both transaction parties should agree amongst
themselves on the electronic signature or electronic
document produced by technology that they could commonly
abide. In
addition, between certificate authority and users, they
can use contract to standardize the rights and obligations
of both parties.
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(3)
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Principle
of market direction: Regarding management on certificate
authority by the government and development of electronic
certification market, it is suitable to be limited to only
minimum necessary standard.
In the future, on establishment of electronic
certification system and development of electronic
certification market, it is better to allow civilians to
direct the development of various electronic certification
service required by various electronic transactions and
its related standard.
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| III. Essentials
of article |
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There
are seventeen articles of
this law and its essentials are as follows:
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(1)
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Definition
of the terms of articles of this law. (Article 2)
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(2)
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Stipulation
of legal behavior and legal provision that should be
conducted in writing can be based on electronic document
as essential document and effect of electronic document
can base on its production according to specific terms.
(Article 4).
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(3)
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Based
on provision of the law that the original or original copy
has to be presented, it can be substituted by electronic
document based on specific terms. (Article 5)
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(4)
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Based
on provision of the law
that document should be kept in writing, it can be
substituted by electronic document based on specific
terms. (Article 6)
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(5)
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Standard
of electronic communication and transaction receive and
dispatch time and place. (Article 7 and Article 8).
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(6)
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Based
on provision of the law
that signature and seal is necessary, it can be
substituted by electronic signature based on specific
terms. (Article 9)
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(7)
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Essentials
of preparation of digital signature should be confirmed.
(Article 10)
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(8)
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Certificate
Authority should announce to outside the operation
standard of certification practice. (Article 11)
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(9)
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Penalty
rules. (Article 12)
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(10)
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Handling
method when service of Certificate Authority is
terminated. (Article 13)
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(11)
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Damage
indemnity liability that the Certificate Authority should
bear. (Article 14).
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(12)
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Effect
of certificate signed by foreign Certificate Authority.
(Article 15)
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(13)
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Sub-laws
of this law shall be stipulated by supervisory
institution. Article 16)
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(14)
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Date
of implementation of this law shall be stipulated by
Executive Yuan. (Article 17)
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| IV. Full script
of electronic signature law |
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※
Only provided for reference, standard of
actual script shall be based on the terms publicly
announced by the President and passed by Legislative Yuan.
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(Purpose
of legislation)
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Article
1
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In
order to expedite common utilization of electronic
transaction and to ensure safety of electronic
transaction and to promote e-Government and
e-Commerce, this law is specifically stipulated.
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When
this law has not been regulated, it will be
applicable to regulation of other law.
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（Definition
of term ）
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Article
2
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Definition
of terms used in this law shall be as follows:
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1.
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Electronic
document：Refers
to word, voice, picture, image, symbol or
other information and by means of
electronic or method that other people
cannot directly understand with sense to
produce record that is sufficient to
express its meaning and is provided for
use in electronic processing.
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2.
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Electronic
signature：Refers
to attachment to the electronic documents
and is associated with them and is used to
identity and confirm the identity,
qualification of the electronic document
signature party and the true and false of
the electronic document.
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3.
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Digital
signature：A
certain length of digital information of
electronic document by mathematical method
or other formula, then confidentiality
will be added with the secret key of the
signature party forming an electronic
signature and the key can be opened to
public for certificatiion.
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4.
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Added
confidentiality：Electronic
document with be processed in the form of
disorderly code by means of mathematical
method or other method,.
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5.
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Certification
organization：Refers
to institution, finance corporation
signing and issuing certificate.
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6.
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Certification：Refers
to an electronic certification on
certification material with signature for
use in confirming identity and
qualification of the signature party.
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7.
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Certification
practice operation standard:Certificate
Authority will publicly announce to
outside to describe the operation standard
of certificate authority for issuance of
certificate and handling of other
certification business.
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8.
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Information
system：System
that can generate, send out, receive,
store or handle other form of electronic
message and data.
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(Supervisory
institution of this law)
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Article
3
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Supervisory
institution of this law shall be Ministry of
Economic Affairs”
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(Written
document can be prepared with electronic document)
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Article
4
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Upon
consent by corresponding party, electronic
document can be used as a way of expression.
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If
processing by writing is based on provision in
law, if its content can be displayed completely
and can be provided for examination at a later
date, then it can be conducted by electronic
document upon consent by the corresponding party.
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The
previous two provisions shall base on law or
public announcement of administrative institution
and for expulsion of its suitability or on its
application technology and procedure they will be
regulated separately.
However, regulation on application
technology and procedure shall be fair, reasonable
and shall not have different treatment without
proper reason.
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（(Original
or original copy of the written document can be prepared
with electronic document)
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Article
5
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Based
on the provision of law to present document
original or original copy, if the document is
prepared in the form of electronic document and
its content can be completely displayed and can be
retrieved at a later date for examination, it can
be conducted in electronic document except if
writing mark and chop mark has to be checked or
other necessity to identify the true and false of
document or there is other provision in law.
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Content
of previous item that can be completely displayed
does not include information dispatched, received,
stored in the form of electronic form and display
of information attached in the operation.
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(Legal
custody of written document can be prepared with
electronic document)
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Article
6
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Based
on provision in law, if the document has to be
kept in written form, if its content can be
completely displayed and can be acquired for
examination at a later date, then it can be
conducted in the form of electronic document.
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The
previous electronic document shall be limited to
its place of issue, place of receipt date and
information of certification, and examination on
the true or false of the content of electronic
document shall combine its main content keeper.
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The
first provision shall base on law or public
announcement of administrative institution and for
expulsion of its suitability or on its application
technology and procedure they will be regulated
separately. However,
regulation on application technology and procedure
shall be fair, reasonable and shall not have
different treatment without proper reason.
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（(Electronic
document receipt and dispatch time inference standard)
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Article
7
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For
electronic document, the document issuing time
shall be the time of information system
that
the entering issuing party cannot control.
However, if there is separate agreement by
the
party concerned or there is separate public
announcement by administrative institution,
then
it shall be based on its agreement or public
announcement.
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Electronic
document shall base on the following time as the
document receipt time. However, if there is
separate agreement by the party concerned or there
is separate public announcement by administrative
institution, then it shall be based on its
agreement or public announcement.
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1.
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If
the receiving party has designated
information system for receiving
electronic document, then the time of
entry into that information system
by that electronic document shall
be time of receipt. If the electronic
document is sent to information system is
not designated by the receiving party,
then the receipt time shall be the time
when the receiving party acquires the
electronic document.
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2.
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If
the receiving party does not designate
information system for receiving
electronic document, then the time of
entry into that information system of the
receiving party shall be the time of
receipt.
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(Place
for receipt and dispatch of electronic document)
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Article
8
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Place
of business execution of issuing party shall be
inferred as the place of issue of electronic
document. Place
of business execution of receiving party shall be
inferred as the place of receipt of electronic
document.
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When
issuing party and receiving party has more than
one business execution place, then the most
closely related business place with major
transaction or communication behavior shall be the
issuing place or receiving place.
If major transaction or communication
behavior is unclear, then the major place of
business execution shall be the issuing place and
receiving place.
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When
the issuing party and receiving party has no
business execution place, then its residence shall
be the issuing place and receiving place.
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(Signature
or seal can be conducted in electronic signature)
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Article
9
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If
signature or seal is necessary based on provision
in law, upon consent by the corresponding party,
it can be conducted in electronic signature.
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The
previous provision shall base on law or public
announcement of administrative institution and for
expulsion of its suitability or on its application
technology ad procedure they will be regulated
separately. However,
regulation on application technology and procedure
shall be fair, reasonable and shall not have
different treatment without proper reason.
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(Digital
signature should base on a certain procedure for its
production before becoming effective)
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Article
10
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For
signing electronic document with digital
signature, it is necessary to conform to the
following provisions in various articles before
Item 1 of the previous article can become
effective.
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1
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Utilize
certificate issued by Certificate
Authority based on law through approval by
Article 11 or Article 15.
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2
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Certificate
is still valid and has not exceeded the
area of utilization.
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(Certificate
Authority should prepare and publicly announce
certification practice operation standard)
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Article
11
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Certificate
Authority shall prepare certification practice
operation standard stating clearly the
certificate authority operation or provide
related operation procedure of certification
service. After submission to supervisory
institution for approval, it will be publicly
announcing in the open website established by the
certificate authority for public inquiry before
providing certification issuance service to
outside. When the certification practice operation
standard change, the procedure will be the same.
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Certification
practice operation standard should state clearly
the following items:
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1.
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Reliability
that will affect the certificate issued by
the certification institution or important
information of its business execution.
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2.
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Cause
of direct cancellation of the certificate
by the certificate authority.
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3.
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Examination
on the content of the certificate
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4.
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Method
and procedure for protection on personal
information of the party concerned.
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5.
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Other
important items stipulated by supervisory
institution.
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Before
the execution of this law, when the certification
institution has conducted certificate-issuing
service, then within six months after execution of
this law, submit certification practice operation
standard to supervisory institution for approval.
However, before completion of aprpoval by
the supervisory institution, the institution can
still continue to provide certification service to
outside.
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Supervisory
institution should publicly announce name list of
approved Certificate Authority.
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(Penalty
rules)
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Article
12
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When
the certification violates the regulation of the
previous article, depending on its condition, the
supervisory institution can sentence for penalty
of over NT$1,000,000 and under $5,000,0000 and
shall instruct the certification institution to
improve within a time limit.
If correction cannot be made after the
expiry date, then continuous penalty based on each
time shall be imposed.
For matters that are major, part or all of
its business shall be suspended.
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(Termination of
service)
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Article
13
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Before
termination of its service, certificate authority
should complete the following measures:
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1.
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30
days before date of termination of service
notify supervisory institution.
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2.
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On
certificate that is valid at time of
termination, arrange other certificate
authority to undertake its business.
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3.
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30
days before date of termination, other
certificate authority shall undertake its
business and the fact shall be notified to
the party concerned.
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4.
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File
record shall be transferred to the
certificate authority that undertakes its
business.
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If
there is no Certificate Authority undertaking the
business of that certificate authority based on
the provision in Item 1 and Item 2, supervisory
institution shall arrange other certificate
authority to undertake.
If necessary, supervisory institution can
publicly announce the certificate that is still
valid at that time.
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The
above regulation is also applicable to
certification that is ordered to suspend its
business based on this law or other law.
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(Compensation
obligation)
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Article
14
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If
operation of the Certificate Authority or related
operation procedure of its certification service
causes damage on the party concerned, or due to
proper intention, the third party suffer damage
due to trust on that certificate, the institution
should bear compensation except that it can prove
it has no error in its behavior.
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When
the usage area on the certificate has accurate
limitation, on damage caused that exceeds the
usage area, the certificate authority will not
bear compensation responsibility.
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(Principle of
International mutual benefit )
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Article
15
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For
certificate authority registered based on foreign
legal organization, under the principle of
international mutual benefit and safety condition,
upon approval by supervisory institution,
certificate issued by them and certificate issued
by domestic certificate authority shall bear the
same effect.
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Approval
method of the previous item shall be stipulated by
supervisory institution.
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Supervisory
institution should announce publicly name list of
the approved certificate authority in Item 1.
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(By-laws)
|
Article
16
|
By-laws
of this law can be stipulated by supervisory
institution.
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(Date
of implementation)
|
Article
17
|
Date
of implementation of this law shall be stipulated
by Executive Yuan.
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top
|
|
V.
Description on electronic signature law
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1
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What
is the purpose of formulation of electronic
signature law?
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（1）
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To
conduct transaction and transaction
behavior with other party in the real
world it can rely on conversation,
signature or display of identity card to
allow other party to identity, to confirm
and to generate a trust relationship.
However, to network world it is possible
that both parties concerned will never
meet, how to confirm the real identity of
each other to conduct transaction is a
real big problem. As transaction in the
network and its transaction content will
all be transmitted through electromagnetic
record, how to avoid malicious change by
third party during
transmission of information and how
to avoid condition of 「denial
afterwards」after
the transaction is completed, they are all
important topics that must be solved
during promotion of e-Commerce.
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（2）
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Presently,
technological world has invented may
application technology to solve the above –mentioned
problem.
For example, electronic
certification technology is a solution
plan on this aspect.
By means of reliable scientific
technique the safety of transaction
on-line can be solved and it can ensure
confirmation on identity identification so
that consumers can generate sense of trust
on network.
Following that a common utilization
confidence can be really established and
then further expand the application level
of e-commerce.
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（3）
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After
possession of usable electronic
certification application technology, it
is necessary to complete stipulation of
related legal system and matching
environment al measures in time and the
important foundation stone is the
electronic signature law.Through
electronic signature law, the legal effect
of usage of electronic signature and
electronic document can be regulated by
this law and by standardizing management
system of certificate authority the legal
system can be established as the basis of
standard.
In this way, the electronic
certification system can be properly
operated.
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2
|
What
is electronic signature? What is electronic
document? What
is the difference with traditional signature and
seal, and written document?
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（1）
|
Electronic
signature and electronic documents exist
in the form of electronics and can be
transmitted in network is obviously
different from traditional hand written
signature, seal chopping and written
paper. Whether new technology of
electronic signature or electronic
documents actually can be deemed as equal
of 「written
paper, signature and seal」and
will be granted with legal position and
effect is the focus that electronic
signature law will concern about. Simply
speaking, "electronic Signature"
exists in the form of electronics and is
attached on electronic documents and is
related to its logic that can be used to
identify the indemnity of signing party on
the electronic document and expresses that
the signing party agrees on the content of
the electronic document.
Electronic document means record of
words, sound, picture, image, symbol or
other information that its meaning is
expressed in the form of electronics or
the sense of other party cannot direct
recognize and identify and is provided for
use for electronic processing.
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（2）
|
Electronic
document can display words and symbols on
the screen.
However, from the point of view of
technical level, each display on
electronic document all belong to
generation of regrouping of digital
electromagnetic record 0 and 1 and there
is no substantial body that can be
provided for existence of attachment and
that is different from document with
paper. If electronic document encounters
malicious change by third party, just the
addition or increase of bits cannot
possibly display marks of correction as
actual physical paper.
Therefore it is very easy to change
electronic document and is hard to sense.
These differential characteristics
compared with physical documentary paper
makes that electronic document obviously
cannot conform to the present legal 「documentary」form
and behavior regulation requirement and
therefore it cannot have similar legal
effect and electronic signature will face
with similar difficulty.
To breakthrough present legal
barrier, legal effect of utilization of
electronic signature and electronic
document must be granted.
Therefore it is necessary to
formulate related laws in electronic
signature law actively and to establish a
proper utilization environment so as to
reduce disputes on various kinds of
applicable law.
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3
|
In
practice, what area that electronic signature
technology can apply to? To general public, in
order to lower utilization risk burden, in regard
to electronic signature application, what things
should be understood and attention should be paid
to?
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（1）
|
The
passing of legislation of our electronic
signature law can expedite popular
utilization of electronic transaction
between parties concerned and can ensure
electronic transaction safety.
In addition, it will standardize
usage of electronic signature and document
and will establish electronic
certification system and enhance safety of
electronic communication and transaction
safety.
Therefore, electronic signature law
will allow more people to be willing to
use electronic signature and document.
The popular network purchasing,
remote teaching and entertainment, network
finance business and network securities
order-placing operations are areas that
can be applied to electronic signature
technology.
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（2）
|
After
all, electronic signature and document are
products of new technology and to the
public it is a brand new experience.
Public should establish a correct
perception as soon as possible on usage
concept of related technology and usage
habits in order to effectively reducing
the risk of improper usage.
For example, in international
field, in regard to electronic
certification practice operation, there
are usage of electronic certification
technology with different safety level
under various kinds of usage situation.
For example, daily communication of
e-Mail dispatch will definitely be
different than the class of electronic
certification used in large amount of
electronic transaction with companies and
the concept of different usage must be
established.
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（3）
|
Furthermore,
electronic certification technology after
all is conducted in the form of
electronics and how to establish
individual safety usage habits, it cannot
be ignored.In the real world, seal of a
person is the main method of
certification.
However, in the future, it is
possible that electronic signature will be
kept in different media like diskette and
IC card etc. and duplication in the form
of electronics like diskette) can be
easier than illegal carving of seal. In
order to effectively reduce and to avoid
the risk of forgery on electronic
signature, the safety diskette and IC card
etc. should be properly kept like the seal
of an individual and the personal access
code cannot be leaked out to any third
party. When people can establish the habit
of safety usage, they can even ensure
their own rights and benefits.
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top
|
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4
|
What
is the difference between 「Digital
signature」and 「Electronic
signature?」 How come
international legislation samples mostly tends
towards 「Electronic
Signature Law」as
standard?
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|
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|
（1）
|
In
order to solve the problem of transaction
safety and on-line identity
identification, various types of
electronic certification technology is
used.
These technologies all based on
"electronic form" to exist and
is attached on electronic document and is
related to its logic.
In addition, it is used to identify
the identity of the signing party and to
express the content agreed by signing
party that these technologies all belong
to the area of "electronic
signature" technology. In
fact, in practice, for electronic
signature technology, digital signatures
were developed earliest and its maturity
is high.
Its operation principle is by means
of "Asymmetric Cryptosystem"
encryption technology and is different
than other electronic signature
technology. Simply speaking, digital
signature is a
kind of electronic signature technology.
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（2）
|
As
the type of electronic signature
technology that can be applied is not just
digital signature, for example all kinds
of "Biometric Authentication
Technologies" are getting more
matured. Many companies have developed
like human physiological outer appearance
identification, finger print
identification, pupil identification,
sound wave identification and DNA
comparison identification etc.
In the same way they can provide
function of on-line identity
identification and these are all
electronic signatures in its broad
meaning.
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|
（3）
|
As
there are many electronic signature
technology that can be provided for is
solution, the main legislation trend
internationally are formulating
"electronic signature law" so
that I an coverall instead of just singly
formulate the 「digital
signature law」 Neutrality"The
"Draft Uniform Rules on Electronic
Signature" presented by （UNCITRAL）clearly
announce the principle of "Technology
Neutrality". What it means by
principle of technology neutrality means
that there should be foresight in the
direction of principle law formulation and
there should be no bias on specific
technology.
In legislature , there should not
be limitation or bias effect on
technological development. If
only legal standard is formulated on
digital signature,
the result is in later days other
electronic signature technology cannot be
used. The formation of electronic
signature law of our country should
consider the trend of legislation
internationally and should retain the
flexibility of inclusion of other
electronic signature technology.
Therefore a broader definition area
should be adopted to formulate the
electronic signature law.
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5
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"Digital
signature" technology party concerned
relationship chart and operation flowchart
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The following is a simple explanation of
the operating procedure and principle of digital
signature (refer to the pictorial description).
Core of digital signature is in two parts, one is
the private key that is solely owned by signing
party and the other is public key that will be
held by the certification party for certification
and receipt of documents. Assuming
a certain consumer (signing party A) has completed
an E-mail
and send to electronic shop (certification party
B) to place order. Its operation principle is to
made use of the private key of the Asymmetric
Cryptosystem , then Party A will add
confidentiality to the mail with private key and
convert this document as a disorderly code and
will generate a digital signature attached at the
end of the letter and will transmit to Party B
afterwards. After Party B has received, then it
will compare the private key o Party A one by one
with the corresponding public key.
After certification by this public key to
identify that digital signature and its original
script will be revealed after secret is annulled. If
it is smooth without error, Party B can prove that
it is sure it is issued by Party A. Therefore in
technological theory, only private key owners
Party A can issue such signature and Party A
cannot deny this fact with Party B. In this way,
identity identification problem on line can be
solved.
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6
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What
is certification authority? In the country mainly
which company is in the process of devoting in
this area and operation of related business?
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（1）
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Certification
Authority，CA）means
organization that can provide digital
signature production and electronic
certification service. Certification
authority must base on related management
regulation and standard of the electronic
signature law to provide related
certification service: including
examination on identity of applicants for
certification, quality and attribute and
issuance of private gold key to applicant
and issue public key certificate so as to
provide certification on the matching
relationship between public key and
private key and to prove identity and
ensure safety.
Simply speaking, certificate
authority plays the role of 「household
administration office」in
network environment and shall be
responsible for personal identity
examination and issuance of identity
proof.
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（2）
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Looking
at the future rapid development and future
huge market of network application, many
companies in the country have
progressively invested in capital ,
establish company and department and
actively strive for certificate authority
that is a market with extremely good
potential. Hereunder are major companies:
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（１）
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Government
Certification Authority (GCA) of
Chung Hwa Telecomm Co. Ltd. GCA is
responsible for trial processing
of tax return on net in our
country. Reference website http://www.pki.gov.tw/
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（２）
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"HiTrust"
who is the agenet of US Verifsign
Company which is the first
electronic certification service
company in the world provides
electronic certification product
and technology as well as
electronic certification service
and e-commerce service.Reference
website http://www.hitrust.com.tw/home.htm
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（３）
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Taiwan
network certificate company and is
mainly formed by Finance
Information Co. Ltd. Kuan Mou
Network Co. Ltd. Taiwan Securities
Exchange Bureau, Taiwan Securities
Concentrate Custody Co. Ltd. who
plan to provide certification
service domestically in securities
and finance field.
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（４）
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Other
companies in the process of
development and formation.
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7
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In
order to standardize transaction safety and
application standard for identity confirmation,
which countries already are completed or actively
in the process of legislation on related area of
electronic signature?
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In
order to establish the safety and reliability of
electronic transaction environment and popular
application of e-commerce, various countries in
Europe and America all actively expedite
legislation similar to electronic signature.
For example, Germany (August, 1997),
Malaysia (1997), Italy (March 1997), Singapore
(June 998), Korea (legislated in December 1998 and
was effective in July 1999), Hong Kong (January
2000), Japan (may 2000) US Federation (June 2000)
and various states (40 more states had already
legislated) and for EEC, formulation of electronic
signature order has been completed (January 2000),
various member countries like England (July 2000),
France (March 2000) already completed the
coordination of domestic law within the member
states before July 2001 based on the standard of
orders.
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8
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What
is the principle of legislation of electronic
signature law?
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（1）
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Principle
of neutral technology: Any technology that
can ensure the integrity of the
information during the process of
transmission or storage and can examine
the identity of the user can all be used
to produce electronic signature and will
not adopt asymmetric form」confidentiality
addition technology as the foundation of 「digital
signature」as
the limit so as not to block the
development of application of other
technology.
This law adopts「electronic
signature」suggested
by international organization including
United Nations and EEC as the basis of
legislation instead f basing on (digital
signature) as limit so as to response to
innovation development of electronic
examination technology such as
bio-technology. For electronic signature
or electronic document produced by any
electronic technology, as long as the
function and written document and
signature and seal is equivalent, they can
all be used.
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（2）
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Principle
of contract liberty: Regarding electronic
transaction behavior in civilian area, it
is appropriate that under the principle of
contract liberty, both transaction parties
concerned shall agree between themselves
to adopt what kind of suitable safety
technology, procedure and method to
produce electronic signature or electronic
document as the basis that both parties
can mutually rust and abide and shall be
the basis of related legal responsibility.
Therefore, it is not appropriate to
intervene the contract principle of both
transaction parties with public authority
of the government. Both transaction
parties should agree amongst themselves on
the electronic signature or electronic
document produced by technology that they
could commonly abide.
In addition, between certification
institution and users, they can use
contract to standardize rights and
obligation for both parties.
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（3）
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Principle
of market-directed: Regarding management
on certification institution by the
government and development of electronic
certification market, it is suitable to be
limited to only minimum necessary
standard.
In the future, on establishment of
electronic certification system and
development of electronic certification
market, it is better to allow civilian to
direct the development of various
electronic certification service required
by various electronic transactions and its
related standard.
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9
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How
electronic signature law can be legislated to
grant legal effect to electronic signature and
electronic document and to standardize related
legal effect?
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（1）
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To
establish electronic signature and
documents usage standard system, to
establish complete usage environment and
to grant legal effect to electronic
signature and document is one of main
mission of electronic signature law.
Furthermore, usage of electronic signature
and document cannot conform to present
legal standard requirement for signature
and regulation of legal requirement form
and behavior of document.
In order to breakthrough this legal
barrier, this is the second major mission
of electronic signature law.
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（2）
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Confirm
the legal effect of electronic signature
and document utilization:
First
of all, legal recognition on electronic
signature and document should be granted.
Treatment for electronic signature
and document cannot solely due to the
reason of existence in the form of
electronic record and cannot conform to
the essential terms of signature and
writing and directly deny its effect.
Reference shall be made to UNCITRAL of
United Nations, US Illinois state,
Australia, Singapore and Malaysia that
also has regulation on legal recognition
on its position; The purpose is that there
should be no discriminating attitude on
electronic signature and document law and
that is the principle of "non
discrimination". Presently, in many
E-Commerce activities, commonly speaking
it is possible that it only belongs to
E-mail document transaction or simple
behavior of on-line transaction and
absolutely most part belongs to
"unnecessary behavior". The law
specifies that the percentage of the
necessity to fulfill "necessary
behavior" is not high. Stipulation of
this term can educate people in their
daily live to hold an equal attitude on
electronic signature and document used by
them and actual physical signature and
written document.
Agreement, commitment, commitment
etc. between parties concerned, as long as
it is not a legal required form behavior,
law originally should not interfere and
regulate party concerned that it must be
done in electronic document or in writing.
Therefore,
most of on-line transaction behavior,
communication will confirm more on its
legal effect and other people cannot deny
it arbitrarily.
This is the first principle and not
only it has the meaning of declaration, it
can even allow electronic signature and
document to obtain the effect of a common
legal position.
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（3）
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Breakthrough
present barrier of legal provision of 「legally
determined『written
signature』required
form behavior」
If due to legal
requirement of requirement behavior that
signature or written document
is necessary and if it is
transmission behavior of electronic
signature and electronic document etc.
then they cannot possess similar legal
effect as it cannot conform to legal
essentials. In
order to eliminate the barrier of legal
applicability, various countries in the
world all formulate similar regulation
that when behavior is conducted by
electronic signature and document, if its
contents can be displayed completely in
the form of electronics and can be
acquired for examination on its true and
false at a later date, then it is deemed
that it can conform the essential
requirement of "signature, written
document" in law. UNCITRAL of united
Nations even more clearly describe the
principle of this
"Functional-Equivalent". The
point of consideration is not to allow
electronic signature and document to be
directly equal to traditional signature
and paper and instead it considers their
reason and requirement of regulation in
law for "signature, written
document" to induce necessary
functional essential.
Possession of similar functional
essential electronic signature and
document can conform to the so called
legal requirement for signature and
written document. Legislation
on this part is to breakthrough the
difficult problem in legal applicability
of electronic signature and document so
that it has the same effect as signature
and written document.
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10
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Electronic
signature application technology is a new
technology and if people cannot use it, will it
affect their rights and benefits?
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In
order to protect the rights and benefits of the
people and to avoid people to be in an
disadvantageous position due to their inability to
use electronic signature and document, the
stipulation of electronic signature law should not
enforce requirements that government institution
and civilian organization and transaction party
concerned must use electronic signature and
document to prepare documents, to store , to
transmit and to receive. Instead,
principle of self-decision by the party concerned
should be adopted that the party concerned can use
electronic signature in the form of agreement and people
should not be foreced to use. In other words, in
the future, even if government department or
enterprise department has a high level of
digitization and networking, they still must
provide manual operation service so as to ensure
the rights and benefits of all people.
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I.
General description 