Admissibility in Court Disputes and The Challenge of Forgery Risk Management
Since July 1, 2024, the Law on Electronic Transactions 2023 has officially come into effect, marking a significant stride in the comprehensive recognition of the value of electronic contracts. However, when business relationships sour and parties resort to litigation, not every PDF file containing a signature is accepted by Judges as legitimate evidence.
This article analyzes the evidentiary value of E-contracts and the legal risks surrounding digital signatures.
1. Legal Validity: Can “Soft Files” Replace “Black and White Paper”?
Principles of Recognition (Law on Electronic Transactions 2023)
Current Vietnamese law acknowledges that a Data Message (E-contract) has legal validity equivalent to a paper document if it satisfies 02 conditions:
- Integrity: The information contained in the contract must remain unaltered from the time it was first generated. (This means the PDF file has not been edited, spliced, or modified after signing).
- Accessibility: The information in the contract is accessible and usable in a complete form when necessary.
Conclusion: Enterprises can fully execute labor contracts, purchase agreements, and service contracts online without the need for printing, wet signing, or red stamping, provided that technical standards are met.
2. E-Contracts in Court: Solid Evidence or Worthless Files?
When a dispute arises, the Court will examine the E-contract under the status of “Electronic Evidence.” Its probative value depends on the reliability of the method used to generate, store, and transmit it.
The Court will scrutinize 3 critical factors:
- Identity Verification (Who signed?): Does the person holding the USB Token match the authorized signatory (e.g., the Director), or was it the accountant signing without authorization?
- Content Integrity (Has it been altered?): Did the parties use Hashing techniques to lock the content? Or was it simply a Word file converted to PDF with an image of a signature inserted? (The latter is easily rejected by the Court).
- Timestamp (When was it signed?): Determining the precise signing time is crucial for establishing the contract’s validity.
Practical Note: If an enterprise only exchanges contracts via Email or Zalo with an inserted Scanned Signature, the counterparty can easily deny the obligation in Court (“I didn’t send this email,” “My email was hacked”). In such cases, the enterprise incurs significant costs to establish a Bailiff’s Report (Vi bằng) or request complex digital forensic assessments.
3. Distinguishing Signatures: The Boundary Between “Safe” and “Risky”
Not every “signature” in the digital environment constitutes a “Digital Signature.” This confusion is a primary cause of lost lawsuits.
Type 1: Simple Electronic Signature (Scan, Image Signature)
- Format: A photo of a wet signature pasted into a Word/PDF file, or a signature drawn on a touchscreen (iPad).
- Legal Value: VERY LOW.
- Risk: Extremely easy to forge (Copy-Paste). It is difficult to prove who actually performed the act of pasting the image. Courts typically require supplementary evidence (email history, transaction records) to accept it.
Type 2: Digital Signature (Recommended)
- Format: Uses a USB Token, HSM, or Smart-ID (remote signing). Provided by licensed Certification Authorities (CA) such as VNPT, Viettel, FPT, BKAV, etc.
- Legal Value: HIGHEST.
- Characteristics: Ensures “Non-repudiation.” If a contract is signed with a valid Digital Signature, the signatory cannot deny having signed it, unless they can prove the Private Key was stolen.
4. Forgery Risks and Misappropriation of Signing Rights
Even when using Digital Signatures, enterprises face risks related to human management:
- Delegation of USB Tokens: Directors often find it inconvenient to plug in the USB, so they hand over both the USB Token + Password to the Chief Accountant or Administrative Staff.
- Consequence: Staff may unilaterally sign fictitious contracts, loan agreements, or transfer funds without the Director’s knowledge. Before the law, the Director remains liable for exposing the Private Key.
- Expired Certificates: Contracts signed at a time when the digital certificate has expired or been revoked may be considered invalid in form.
- Phishing: Hackers send fake links requesting remote digital signature authentication, thereby hijacking control to sign fraudulent transactions.
5. Recommendations for Enterprises (Safety Checklist)
To ensure the E-contract serves as a true “shield” protecting the enterprise in Court:
- Use Standard E-Contract Platforms: Prioritize platforms with “Interconnected Axes” verified by the Ministry of Industry and Trade (e.g., VNPT eContract, FPT.eContract). These platforms automatically generate an Audit Trail of the entire viewing, signing, and sending process $\rightarrow$ This is “ironclad evidence” in Court.
- Zero Tolerance for “Image Signatures” in High-Value Contracts: For contracts of significant value, strictly require the counterparty to use a Digital Signature (Token/HSM).
- Token Management Regulations: Enact internal policies strictly prohibiting the handover of USB Tokens to others. If signing authority is delegated, there must be a written Power of Attorney limiting the scope.
- Validate Signatures: Before executing the contract, use software (such as Acrobat Reader or the National Electronic Authentication Center’s website) to verify if the digital signature on the PDF is “Valid” (Green Check).
CONCLUSION
Electronic contracts are an inevitable trend. However, remember: Technology is merely a tool; legal validity lies in the management process. A USB Token left carelessly on a desk is more dangerous than a wooden seal locked in a safe.
📞 CONTACT LEGAL CONSULTANT:
TLA Law is a leading law firm with a team of highly experienced lawyers specializing in criminal, civil, corporate, marriage and family law, and more. We are committed to providing comprehensive legal support and answering all your legal questions. If you have any further questions, please do not hesitate to contact us.
1. Lawyer Vu Thi Phuong Thanh, Ha Noi Bar Association
Email: vtpthanh@tlalaw.vn
2. Lawyer Tran My Le, Ha Noi Bar Association
Email: tmle@tlalaw.vn
Nguyen Hien Mai