The old law of January 10, 2002 N 1-FZ had several disadvantages, which hindered a wide use of an electronic signature in Russia. In particular, it permitted only one technology of a digital signature and did not allow legal persons to use an electronic signature. A new law states that both legal persons and state bodies can get a digital signature. The sphere of implementation of electronic signatures has been extended – they are valid not only at conclusion of civil transactions, but also at rendering state and municipal services, as well as at performing other legally relevant actions.
Andrew Pushkin, Executive partner of the legal company Tenzor Consulting Group, Moscow
The new law gives definitions of three types of an electronic signature: simple, enhanced and qualified.
Simple signatures are created with the help of codes, passwords and other means which allow to identify the author of a document, but which do not allow to check if his data have been changed since the moment of signing. A simple signature is enough, for example, to submit documents for an international passport.
Enhanced signatures are created with the help of cryptographic means and this allows not only to identify the author of a document, but to check his data for any changes. It is possible that a certificate of an unaccredited centre will be necessary to create such signatures. One can do without a certificate, if the technical equipment can fulfill requirements of the law. As such it is an analogue of an electronic signature which is being used now, but which does not provide relevance in law to electronic documents.
Qualified signatures are a type of enhanced ones. They are created with the help of certified means and have a certificate of an accredited centre.
Simple and enhanced signatures substitute a signature on a paper document in cases provided by the law or at the agreement of parties. An enhanced signature also can be regarded as an analogue of a wet stamp.
Qualified signatures substitute signatures and stamps on paper documents in all cases, except those ones, when the law binds to submit a paper document. Files, certified by a qualified signature are equated to paper documents with a person’s handwritten signature. It means that a contractor cannot reject an electronic document with a qualified signature by the only reason that a file is not printed and signed by hand. The only exception is those cases when a document is allowed to be composed only in a paper form.
Unfortunately, the new law does not state how to solve problems which can arise in relation to termination of power of attorney, for example, due to dismissal or death of a natural person named in the certificate of a validation key of an electronic signature. It is unclear if the certificate is invalid in these cases and if it is possible to include another person in the certificate as its owner in a simplified procedure. Also there may be difficulties if an official, having exceeded his authority, uses a digital signature of a legal person.
Besides, it is not clear now, signatures of what types should be accepted by governmental structures and which documents can be certified by these signatures. The Law has not stated, a signature of what type can be used by this or that office, which signature should be used by General Director of a company, which one – by a chief accountant, and which one – by a private person. There is still no order of the RF Ministry of Communications which determines the procedure of accreditation of certifying centres.
That is why I recommend you and your lawyers to monitor adoption of new documents related to this issue.