On June 22, 2023, the National Assembly passed the Law on Electronic Transactions 2023 consisting of 7 chapters and 54 articles. The first and highest goal of the Law is towards electronic data communication that can replace paper documents, reducing paperwork, procedures and costs. The Law on Electronic Transactions 2005 issued 18 years ago, was built in the form of a framework law; many regulations are still principled and general. Many new technology concepts and tools are widely applied or old concepts have changed with the development of technology such as "timestamp", "electronic signature authentication", "electrical contract", etc. not yet updated. Many issues related to the legal value of electronic documents, electronic data in transactions, entering into contracts, notarization and authentication activities, many reliable services that were born with the development of electronic transactions have not been detailed. Electronic transactions by state agencies have developed strongly (online public services, sending and receiving electronic documents, exchanging data, etc.) but are mainly regulated by documents under Law on Electronic Transactions 2005 and need to be reviewed, supplemented and adjusted to suit the actual development. In fact, electronic administrative procedures have not been completed, many procedures are done online, but the results are documents, paper certificates, sent and stored traditionally, making it inconvenient to carry out. Online public procedures do not meet people's expectations and needs.
The new law has partly overcome and supplemented many content regulations aiming at the goal that electronic messages/data will completely replace bulky documents and papers. In addition, the amendments and supplements made here will be the premise for relevant detailed guidance regulations to be issued shortly, creating an appropriate and effective legal framework for the development of the digital economy.
ATA Legal Services summarizes the key new points of the Law on Electronic Transactions 2023 based on comparison with the provisions of the Law on Electronic Transactions 2005 and provides an assessment of the impact, progress and limitations of the regulations. This is for the Vietnamese business community, organizations and individuals.
1. Condition for data message to be valid as paper documents
Law on Electronic Transactions 2023 inherits the provisions from the Law on Electronic Transactions 2005, recognizing the legal value of data messages as equivalent to documents. Where the law requires information to be presented in writing, a data message is considered to meet the requirements if it satisfies the following 02 conditions:
- Information in data messages is accessible;
- The information contained in the data message is available for reference only.
Thus, some types of contracts must be made in writing such as Labor Contracts, Construction Contracts, Credit Contracts, etc. can be made in the form of an electronic contract if the above two conditions are met.
Law on Electronic Transactions 2005 does not stipulate that documents and contracts expressed by electronic messages must be notarized in cases where such documents and contracts are required to be notarized. Accordingly, contracts and documents that must be notarized include Wills made in a foreign language[1], Housing purchase and sale contracts, Housing mortgage contracts[2], Contracts for transferring use rights. land use, land use rights and assets attached to the land, Contracts for capital contribution using land use rights and assets attached to land[3], etc. which are in electronic form, there is no legal basis to be notarized.
Law on Electronic Transactions 2023 adds regulations recognizing the legal value of data messages as equivalent to documents in cases where the corresponding content law requires the document to be authenticated or notarized. According to this regulation, electronic transactions in fields with stricter requirements on transaction execution require notarization and authentication such as inheritance, housing, land, etc. have been officially recognized.
Currently, there is Decree 45/2020/ND-CP implementing administrative procedures in the electronic environment with regulations on the authentication of electronic copies from originals. However, the Law on Notarization 2014 does not mention the notarization of electronic data. It can be understood that the provisions of the Law on Electronic Transactions 2023 on notarization and authentication of data messages are the premise for the addition of specialized legal regulations related to the notarization and authentication of documents expressed by data messages.
2. Conditions for a data message to have the same value as the original text
According to Clause 8, Article 3 of Decree 30/2020, an “Original document” is a complete version of the content and format of a document, directly signed by an authorized person on a paper document or digitally signed on an electronic document.
A data message is used and has the same value as the original when it meets the following requirements:
- The information contained in the data message is preserved from the time it is first initialized as a complete data message;
- Information in a data message is considered complete as long as that information has not been changed, except for changes in form arising in the process of sending, storing or displaying data messages;
- The information in the data message is accessible and usable in its complete form.
Regulations on conditions for data messages to have the same value as original documents are almost entirely inherited from the Law on Electronic Transactions 2005.
3. Conditions for data messages to be valid as evidence
According to the provisions of the Law on Electronic Transactions 2023, data messages can be used as evidence according to the requirements of the Law on Electronic Transactions and the provisions of the Law on Electronic Transactions 2023 and the law on proceedings. Currently, the Criminal Procedure Code, Civil Procedure Code, and Administrative Procedure Code recognize "electronic data" as one of the sources of evidence.
The concept of electronic data is stipulated in Article 99 of the Criminal Procedure Code 2015 as follows: "Electronic data is symbols, letters, numbers, images, sounds or similar forms created, stored and transmitted. or received by electronic means.”
Clause 3, Article 95 of the 2015 Civil Code and Clause 3, Article 82 of the 2015 Law on Administrative Procedures stipulate that “electronic data messages” can be expressed in the form of electronic data exchange, electronic documents, and electronic mail, telegram, telegraph, fax and other similar forms by the law on electronic transactions.
Thus, "data messages" in the Law on Electronic Transactions 2023 or "electronic data" in the Law on Criminal Procedure 2015, the Civil Code Law are all an object. The Law on Electronic Transactions 2023 for the first time officially recognizes evidence in the form of "data", which is the premise for the collection, use and issuance of detailed legal regulations related to evidence in the form of electronic messages.
The evidence-based value of a data message is determined based on the following factors:
- Reliability of the manner in which data messages are generated, sent, received or stored;
- How to ensure and maintain the integrity of data messages;
- How to determine the originator, sender, and recipient of data messages;
- Other relevant factors.
4. Conversion conditions between paper documents and data messages
In the process of digitization, converting documents from traditional paper documents to electronic data that can be stored and used by electronic devices is inevitable. Conversely, converting data messages to paper documents is also necessary in some cases. Therefore, the Law on Electronic Transactions 2023 has added regulations on converting between paper documents and data messages.
The Law on Electronic Transactions 2023 allows data messages to be converted from paper documents if the following requirements are met:
- Information in data messages is guaranteed to have the same integrity as paper documents;
- The information in the data message is accessible and usable for reference;
- Having a signature symbol certifying that it has been converted from a paper document to a data and information message of the agency, organization or individual performing the conversion.
The case of conversion from a license, certificate, confirmation document, or other approval document issued by a competent agency or organization (with seal and signature of the agency) to data messages must meet the following requirements:
- Information in data messages is guaranteed to have the same integrity as paper documents;
- The information in the data message is accessible and usable for reference;
- There is a separate symbol confirming that the paper document has been converted to a data and information message of the agency, organization or individual performing the conversion;
- Have a digital signature of the agency or organization performing the conversion, unless otherwise prescribed by law.
The legal value of the document is converted according to the provisions of relevant laws. Thus, depending on specialized legal regulations, the value of a data message may be equivalent to or lower than a signed or stamped document. For example, according to the provisions of Clause 1, Article 5 of Decree No. 30/2020/ND-CP on clerical work, electronic documents are digitally signed by authorized persons and digitally signed by agencies and organizations according to provisions of law that have the same legal value as the original paper document.
Paper documents converted from data messages must meet the following requirements:
Information in paper documents is guaranteed to be as complete as data messages;
- Having information to identify the information system and the owner of the information system to create, send, receive and store original data messages for retrieval;
- Having a signature symbol certifying that the data message has been converted to a paper document and information of the agency, organization or individual performing the conversion;
- In case the data message is an electronic certificate, the conversion must satisfy the requirements specified at points above and must bear the signature and seal (if any) of the agency or organization. Carry out conversion according to the provisions of law. The information system serving conversion must have the ability to convert data messages to paper documents.
5. Electronic signature and digital signature
According to new regulations in the Law on Electronic Transactions 2023, electronic signatures are classified according to the scope of use, including:
a. Specialized electronic signature is an electronic signature created and used exclusively by an agency or organization for the activities of that agency or organization in accordance with its functions and tasks.
In particular, specialized electronic signatures to ensure safety are specialized electronic signatures certified by the Ministry of Information and Communications as specialized electronic signatures to ensure safety. In case an agency or organization uses a specialized electronic signature to transact with other organizations or individuals or needs to recognize a specialized electronic signature to ensure safety, it must register with the Ministry of Information and Communications to be granted a certificate of electronic signature for safety purposes.
b. A public digital signature is a digital signature used in public activities and guaranteed by a public digital signature certificate.
In fact, public digital signatures have been used quite commonly. Public digital signatures are managed and licensed by the Ministry of Information and Communications to businesses providing services to individuals, organizations, and businesses as conditional, fee-based business activities. For example, VNPT-CA digital signatures are types of public digital signatures provided by the public digital signature authentication service of Vietnam Posts and Telecommunications Group (“VNPT”), Viettel-CA digital signatures are public digital signatures provided by the public digital signature authentication service of Viettel Military Industry and Telecommunications Group ("Viettel"). The “public activities” mentioned here may include: signing transactions, tax declarations, electronic invoices, etc.
c. A digital signature specifically for public service use is a digital signature used in public service activities and is guaranteed by a digital signature certificate specifically for public service use.
Digital signatures specifically for public service use must be guaranteed by a digital signature certificate of an organization providing digital signature authentication services for official use. The Minister of National Defense carries out state management of electronic transactions in the field of ciphers and digital signatures for official use based on national standards and technical regulations on digital signatures in accordance with the provisions of the law.
6. Changing the concept and ensuring the legal validity of electronic certificates
The Law on Electronic Transactions 2023 has introduced a concept of electronic certificates that is completely different in nature from the Law on Electronic Transactions 2005. According to the old regulations, an electronic certificate is a data message issued by an organization providing authentication services. The electronic signature issued to confirm the person signing the electronic signature is equivalent to the concept of a "digital signature certificate" specified in Article 33 of the Law on Electronic Transactions 2023.
The new regulations introduce a completely different concept of electronic certificates. It can be said that the concept of "electronic certificate" in the Law on Electronic Transactions 2005 and in the Law on Electronic Transactions 2023 is only similar in name. Electronic certificates according to the new regulations are defined as licenses, certificates, confirmation documents, and other approval documents issued by competent agencies and organizations in the form of electronic data. Electronic civil insurance liability certificate[4] of motor vehicle owner, Electronic certificate issued by the University of Economics, City. Ho Chi Minh offers students short-term courses[5], which are electronic certificates according to the new definition of the Law on Electronic Transactions.
This regulation helps to solve the biggest problem in online public services, which is the result of electronic administrative procedures. With the introduction of this regulation, there will be more and more administrative procedures and documents, certificates, permits, etc. to be issued in electronic form, administrative procedures will be carried out completely online from the first step to the step of receiving results, saving time and effort of individuals, organizations and businesses. as well as state agencies.
Information in an electronic certificate is legally valid when it meets the following requirements:
- Electronic certificates are signed with the digital signature of the issuing agency or organization;
- The information in the electronic certificate can be accessed and used in its complete form;
- Where the law requires indicating the time related to an electronic certificate, the electronic certificate must have a timestamp.
7. Supplement reliable services
The Law on Electronic Transactions 2005 only regulates electronic signature authentication services, lacking other third-party assurance activities for electronic transaction activities. To overcome this, the Law on Electronic Transactions 2023 has added timestamp issuance services and data message authentication services in addition to electronic signature authentication services.
a. Timestamp issuance service
A timestamp is electronic data attached to a data message that determines how long that data message existed at a specific time. A timestamp service is a service for connecting time information to data messages.
There are some transactions in which the signing time is important, such as stock transactions and banking transactions. For normal digital signatures, the displayed digital signing time is the time of the digital signing device or server, which can easily be changed with simple tools, making documents and vouchers time-sensitive such as financial-stock transactions, purchase-sale contracts, electronic medical records, intellectual property certificates, copyrights, etc. affected, or even intentionally changed or forged, making it very difficult and costly to prove the effective date of the document after the digital signature if a dispute arises or causes difficulties for the investigating agency when documents become evidence. Therefore, timestamps were born to help businesses and organizations prevent fraud and counterfeiting in electronic transactions.
Timestamps and timestamp issuance services have been regulated in Decree 130 of 2018 of the Government detailing the implementation of the Law on Electronic Transactions 2005 on digital signatures and digital signature authentication services, and are now determined directly in the Law on Electronic Transactions 2023.
b. Data message authentication service
Data message authentication services include:
- Services for storing and validating the integrity of data messages;
- Service of sending and receiving guaranteed data messages.
8. Transition Terms
After the Law on Electronic Transactions 2023 takes effect from June 22, 2023:
- Previously issued digital certificates that are still valid will continue to comply with the old regulations and have the same value as "digital signature certificates" according to the Law on Electronic Transactions 2023;
- Previously issued licenses and certificates that are still valid may continue to be used until their expiration date;
- Confirmation of registration of previous activities providing electronic contract authentication services in commerce will continue to be used until June 30, 2027;
- Applications for registration of providing electronic contract authentication services in commerce that have been previously submitted but have not yet received confirmation of registration will continue to apply the regulations on e-commerce.
The Law on Electronic Transactions 2023 takes effect from June 22, 2023.
[1] Point c, Clause 1, Article 69 of Decree 99/2015/ND-CP.
[2] Clause 1, Article 122 of the 2014 Housing Law.
[3] Clause 3, Article 167 of the 2013 Land Law.
[4] According to Clause 4, Article 6, Section 1, Chapter II, Decree 03/2021/ND-CP.
[5] https://thanhnien.vn/mot-truong-dai-hoc-cap-chung-chi-giay-chung-nhan-dien-tu-cho-nguoi-hoc-1851517017.htm
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