The contract is signed electronically. How to sign a contract with an electronic signature. Is it possible to refuse to use printing? It seems Medvedev canceled the seal

Hello.

There is a Federal Law on electronic signature. It specifies in detail what types, principles of use, etc.

In particular about the species.

Article 5. Types of electronic signatures
1. The types of electronic signatures, relations in the field of use of which are regulated by this Federal Law, are a simple electronic signature and an enhanced electronic signature.

There is a distinction between an enhanced unqualified electronic signature (hereinafter referred to as an unqualified electronic signature) and an enhanced qualified electronic signature (hereinafter referred to as a qualified electronic signature).

2. Simple electronic signature is an electronic signature, which, through the use of codes, passwords or other means, confirms the fact of the formation of an electronic signature by a certain person.

I think a simple electronic signature will suit you.

Article 6. Conditions for recognizing electronic documents signed with an electronic signature as equivalent to paper documents signed with a handwritten signature
1. Information in electronic form, signed with a qualified electronic signature, is recognized as an electronic document equivalent to a paper document signed with a handwritten signature, except if federal laws or regulations adopted in accordance with them legal acts a requirement has been established that the document must be drawn up exclusively on paper.

Article 9. Use of a simple electronic signature
1. An electronic document is considered signed with a simple electronic signature if one of the following conditions is met:

1) a simple electronic signature is contained in the electronic document itself;

2) the simple electronic signature key is used in accordance with the rules established by the operator of the information system using which the creation and (or) sending of an electronic document is carried out, and the created and (or) sent electronic document contains information indicating the person on whose behalf was created and/or sent electronic document.

According to the Civil Code.

Article 434. Form of agreement
2. A written agreement can be concluded by drawing up one document signed by the parties, as well as by exchanging documents via postal, telegraphic, teletype, telephone, electronic or other connection that allows us to reliably establish that the document comes from a party to the contract.

To obtain such a signature, you need to contact a certification center, that is, an organization that has the right to create electronic keys(signature).

In March 2011, SELTEHSTROY LLC (hereinafter referred to as LLC) was recognized as the winner of an open auction. It signed a contract in in electronic format and sent it to the customer, the Federal State Institution “Moscow-Bobruisk Highway Administration of the Federal Road Agency.” However, the customer considered the contract to be signed by an unauthorized person and in April 2011 applied to the Kaluga department of the Federal Antimonopoly Service (UFAS) with a request to include the LLC in the register of unscrupulous suppliers in connection with evasion of concluding a government contract.

Events developed as follows:

• In March 2011, the LLC changed its general director. According to the protocol general meeting members of the company dated 10.03.2011 No. 01/03 and order dated 11.03.2011 No. 2, at the time of signing the state contract using an electronic digital signature (EDS), V. was no longer general director society and therefore did not have the authority to sign such a document;
• at the same time, V. remained to work in this organization, moving to the chair of the deputy general director. In addition, on March 10, 2011, a power of attorney was issued to him, giving him the right to sign such agreements not on the basis of the charter of the LLC, but on the basis of this power of attorney;
• A study of the public key certificates signed by V. and the new general director P. showed:
  • The validity period of the EDS public key certificate, according to the certificate of the Certification Center of JSC "Unified Electronic Trading Platform", issued in the name of the new General Director P., was established from 07/04/2011 to 07/03/2012, i.e. at the time of signing the government contract, the new general director did not have a valid digital signature certificate;
  • the validity period of the EDS public key certificate issued to the former general director V. was set from 01/19/2011 to 01/19/2012, while the key certificate V. did not suspend its validity and was not canceled after the change of management of the LLC;
  • the draft state contract and the document on ensuring the execution of the contract, sent by the company to the electronic trading platform, were signed by digital signature V. as the general director of SELTEHSTROY LLC on 03/14/2011. At the same time, V. was designated in the contract as a person acting on the basis of the charter and authorized to conclude a government contract;
• information about the dismissal of V.’s general director and the appointment of P. as general director, as well as the power of attorney dated March 10, 2011 to carry out actions on behalf of the LLC, issued to V. as deputy general director, were posted on the website of the electronic trading platform only on March 24, 2011, those. after the contract has been signed and sent to the customer.

During the proceedings at the Kaluga OFAS in April 2011, all these circumstances came to light. At the same time, the new general director of LLC P., in his explanations to the antimonopoly authority, confirmed his readiness to sign the government contract and admitted the mistake made when signing it, without challenging V.’s powers specified in the power of attorney.

Considering that the government contract was signed by an unauthorized person, the Federal Antimonopoly Service of Russia included information about the LLC in the register of unscrupulous suppliers for a period of 2 years. Disagreeing with this decision, the LLC appealed to the arbitration court.

And here's attention: according to Art. 183 of the Civil Code of the Russian Federation, if a transaction on behalf of a legal entity is concluded by an unauthorized person, but this organization confirms it, then the transaction is considered valid and all its parties retain the obligations and rights they have assumed. And in the situation under consideration, it is the other party who wants to evade concluding the deal, but the Civil Code does not provide for such a possibility. However, let's see how the judges resolved this dispute.

The court's position has changed

The Arbitration Court of the Kaluga Region considered this case in September 2011 (No. A23-2637/2011). He considered that at the time of signing the contract V. had a valid digital signature certificate and a power of attorney dated March 10, 2011, issued by the general director of the company P., and decided that the fact of untimely posting of this power of attorney on the official website electronic platform cannot indicate bad faith in the behavior of the LLC. Moreover, the power of attorney, albeit belatedly, was nevertheless posted on the official website of the trading platform. The court regarded this as the active actions of the LLC to eliminate the mistake. As a result, the court of first instance ordered the Kaluga OFAS to exclude the company from the register of unscrupulous suppliers.

In December 2011, the Twentieth Arbitration Court of Appeal supported the position of the trial court.

But the Federal Arbitration Court of the Central District in March 2012 considered that the courts of first and appellate instances committed violations when considering this case. In his opinion:

• On March 14, 2011, the digital signature was used by V. in violation of the provisions of Art. 4 of the Federal Law of January 10, 2002 No. 1-FZ “On Electronic Digital Signature” and the conditions specified in the signature key certificate. An electronic document with an electronic signature that does not comply with the conditions included in the certificate has no legal significance! In this case, the certificate listed V. as the general director of the LLC, but on March 14, 2011 he was no longer such;
• The government contract was signed by an unauthorized person, which is a violation on the part of the auction participant of the provisions of Part 2 of Art. 41.2 of the Federal Law of July 21, 2005 No. 94-FZ “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs.”

As a result, the FAS recognized as legal the decision of the antimonopoly authority to include the LLC in the register of unscrupulous suppliers and invalidate the transaction.

conclusions

If the cumulative interpretation of Part 2 of Art. 41.2 of the Federal Law of July 21, 2005 No. 94-FZ and Art. 183 of the Civil Code of the Russian Federation could still tip the scales of Themis in favor of SELTEHSTROY LLC, then to “neutralize” Art. 4 of the Federal Law “On Electronic Digital Signature”, trump cards are difficult to find.

The conclusion that we should draw after familiarizing ourselves with the position of the Federal Antimonopoly Service of the Central District: if the procedure for signing a contract took place on paper, then the organization in such a situation would not have any insurmountable problems, since, unlike an electronic digital signature, a person’s handwritten signature is not “linked” neither to his position, nor to the validity period of the signature certificate.

But even when signing a paper contract, the “signature” attribute includes an indication of the position, its decoding (in the form of last name, first name, patronymic) and a personal flourish. It turns out that the position is also written down here. Then what's the difference? Someone might think that those who wanted to intercept this government order had stronger muscles. And everyone else should treat this story not as a special case, but as a precedent, in order to avoid similar mistakes when signing documents with electronic signatures and timely post information on the website of the electronic trading platform.

The Federal Law of April 6, 2011 adopted the legal force of digital signatures. According to the accepted provisions, the signature has the form of a simple image. It allows you to sign a legal document, purchase agreement or similar documentation.

The use of an electronic signature confirms the consent of the responsible person to the service or the conclusion of an agreement. The power and significance of an electronic signature is recognized on a par with a personally signed version.

The use of digital signature simplifies document management issues. Its power allows you to speed up the process of transmitting information about the party’s consent to a service or action. The signature is applicable in cases where the system for receiving/transmitting a digital electronic signature is supported.

An image is valid only if it is properly registered and entered into the registry. It is recommended to carry out these actions not independently, but by contacting specialists. This will eliminate errors when creating a sample and will guarantee approval legal force embedded information.

What gives legal force to an electronic signature?

Let us examine the question of what confirms the legal significance of an electronic signature. Help: an electronic signature is an image or a group of symbols/numbers that allows you to sign a legal digital document or order.

It is important to separate two concepts: the strength and significance of a signature. Information on paper is an independent object. The identification mark applied manually to it is intended to confirm its authenticity. The process of its creation does not challenge the credibility of the person responsible.

The digital option implies the possibility of third party intervention. Only the use of a certified key confirms the subject’s attitude to the formation of the document. Only the owner or a responsible authorized representative can have access to encrypted data.

It is thanks to the inclusion in the system electronic document management(EDS) data about the owner, the agreement signed with an electronic signature has legal force. It makes it possible to reach an agreement between the parties on recognizing the equivalence of paper and digital media. This is the power of an electronic signature form.

Formalized documents

In EDMS, the following are considered formal documents:

reporting

invoices

employment contract With
employee working for
remotely

claimed
documents, their inventory

A signature takes on legal significance if it matches the format and complies with the conditions for the signature. It is necessary to transmit electronic information strictly according to protocols. If, after verification, the authenticity of the supplied mark is confirmed, the contract is officially recognized. The signature format must comply with the rules for registering a qualified electronic signature (QES).

Upon receipt of such an agreement, the party has the right to verification through the appropriate systems. An encrypted signature on information (ECS) is considered by default to be equal to the hand-written creation of a document. It has legal force and is recognized on an equal basis with the handwritten version. Such an electronic agreement with an image of a signature, the legal force of which is recognized as significant, is regulated by the state.

Unformalized documents

The recognized legal force of an electronic signature in the CEP format confirms that the responsible person created the document with his own hand. Thus, the medium is official.

The list of formal document flow includes the following categories:

contracts

powers of attorney

business card sheets

checklists, etc.

Similar options are allowed to be signed simple view Or no qualified signature. All persons involved in the creation of EDF enter into preliminary agreements on mutual confirmation of consent to the legal force and significance of such a signature.

A necessary condition is the conclusion of an agreement from both parties. It specifies the format of the media, the conditions for registering the details and their content. All details, nuances and little things are taken into account. It is this agreement that allows the authenticity or unreliability of the image to be recognized when determining its legal force.

Equivalence of digital signature with a paper document

For many, the relevant question is whether an electronic signature is as valid as paper version. Legal force is recognized in the media if it contains the appropriate details.

If necessary, the handwritten version is compared with samples recorded in databases from the passport office and the tax office. For electronic signatures, this is a separate database that contains complete information about the owner. This data is entered when registering a digital autograph and must have a complete list of information without errors or inaccuracies. That is why it is recommended to contact specialists to avoid inconsistencies.

A signature drawn up in accordance with all the rules is equivalent to a handwritten version. Depending on the subtleties of design and purpose, it can be used in the creation of contracts, agreements, etc. The legislation recognizes electronic media in which the necessary details are entered.

Our company provides registration and digital signature services. Fast and competent creation of databases is guaranteed. Our specialists will carry out the entire operation, from collecting details to installation on your PC.

The electronic signature issued by us has legal force and is recognized without errors. If you want to have a digital signature, you just need to sign a work contract with us. The cost of services is within reasonable limits.

The exchange of paper contracts with the signature of an authorized person and with the seal of the organization is not the only legitimate form of concluding a transaction. The legislation of the Russian Federation provides for the possibility of concluding contracts electronically. What rules must be followed for an agreement between the parties in electronic form to be legally binding?

Legal basis

The procedure for concluding this type of business documents, such as contracts, is regulated by articles from the Civil and Labor Codes:

• Article 434 of the Civil Code confirms that an agreement between business entities ( legal entities, individuals or non-profit organizations leading on their own behalf economic activity) can be concluded by exchanging electronic documents. The main thing is that it can be established that the electronic document comes from the party to the contract.
• Articles 312.1 and 312.2 Labor Code stipulate that an agreement with a remote employee can be drawn up in electronic form.

In the digital space, the guarantor of document immutability and confirmation of authorship is an enhanced electronic signature: qualified or unqualified. The use of electronic signatures in Russia is regulated by Federal Law No. 63-FZ “On Electronic Signatures” dated 04/06/2011. You can read more about the types of electronic signature.

What gives legal force to an electronic contract

For a transaction to be considered valid, the document must have certain characteristics:

• The form of the agreement must comply with the law if the document is formalized.
• The content of the agreement must comply with the law.
• The signatory must have proven authority to enter into transactions.

Let us dwell on the features associated with signing contracts electronically. Business documents can be divided into two types: formalized and informal. What will guarantee it depends on the type of electronic document.

Formalized documents

Such documents include an employment contract with remote employee and other documents - for example, invoices or reports. To give a formalized document legal force, the following conditions must be met:

• Prepare the document in accordance with the format prescribed by the state.
• Transfer it to the other party to the transaction in accordance with the established regulations for the transfer of documents.
• Sign with a qualified electronic signature (hereinafter -).

The EPC must be obtained in person or by proxy from, which is accredited by the Ministry of Telecom and Mass Communications. The electronic signature must be valid at the time of signing the document.

Unformalized documents

This category includes all other business documents - for example, business contracts, powers of attorney, letters, etc. The state does not regulate the format of informal documents. There are two ways to ensure their legal force:

1. Sign the CEP agreement. As in the case of formalized documents, it confirms the authorship and immutability of the content of the document after it has been signed.
2. Sign the agreement with a simple electronic signature or a non-qualified electronic signature (). If the parties decide to use these types of signatures in document flow, they first need to enter into an agreement in which they recognize the legal force of these types of electronic signatures (Article 4 No. 63-FZ). This agreement specifies the requirements for the type of signature, the details of the contract, its format and other conditions. If there is such an agreement and the parties comply with the regulations specified in it, electronic documents will have legal force.

Which contracts can be concluded electronically and which cannot?

An electronic contract, like any other document that was signed with a qualified electronic signature, is equivalent to a paper document that was signed with one’s own hand. But there are several exceptions to this rule.

Agreements are only on paper

In some cases, which are determined by the government, the parties need to enter into a transaction only in paper form (Clause 1 of Article No. 63-FZ). Agreements cannot be drawn up electronically if they require mandatory notarization, for example:

• annuity agreement,
• contracts for the purchase and sale of real estate, donations, pledge of shares in the authorized capital.

Only in electronic form

And, conversely, there are cases when an agreement can only be concluded electronically. For example, conclude a contract based on results electronic auction within federal law dated 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

That is, an agreement can be concluded in paper or electronic form, unless provided for by law; if the written form of the transaction is not observed, it will be declared invalid.

Where to sign an electronic contract

The ability to create a signature for an electronic document is implemented in different systems and programs:

• You can conclude an agreement at the site where government and commercial customers conduct tenders.
• On the sites commercial organizations, which provide clients with the opportunity to sign a contract. For example, on the website of a microfinance organization that gives loans at interest. In this case, clients need to register, install a special software to work with electronic signatures and get started.
• In accounting systems (for example, MS Dynamics, SAP, Oracle and others).
• In specialized electronic document management systems (for example, Kontur.Diadoc),
• In information systems (for example, a signing service has been implemented on the State Services portal),
• In special programs for signing electronic documents that the user installs on his computer (for example, CryptoARM).
• In web services into which you can upload the required electronic document, including an agreement, and create a signature for it (for example, Kontur.Crypto).

Concluding an agreement in electronic form allows you to minimize the time costs of both parties to the agreement, optimize document flow, and also facilitate further accounting and reporting. In this article you will find information about the essence and features of an electronic contract and the requirements that the legislator imposes on the procedure for its conclusion.

Contract in civil law (concept and essence)

A contract is an agreement concluded by 2 or more persons, establishing, changing or canceling their rights and obligations (Clause 1 of Article 420 of the Civil Code of the Russian Federation). The parties to the agreement can be both legal entities and individuals.

Form of the agreement, in accordance with the provisions of Art. 158 of the Civil Code of the Russian Federation, it may be:

• oral;
• simple written;
• written, notarized.

By general rule, defined in paragraph 1 of Art. 161 of the Civil Code of the Russian Federation, a transaction between legal entities, individuals and legal entities, or between citizens, the amount of which exceeds 10 thousand rubles, is concluded in simple written form, except for cases when such transactions are subject to notarization.

Conclusion of an agreement electronically

When concluding a transaction, the use of paper documents certified by the signatures (and seals, if necessary) of the parties to it is not the only possible way to give it legal force. In particular, the legislator provides for the right of the parties to conclude contracts in electronic form. This approach allows transaction participants to save material and time resources, as well as minimize the risk of errors and inaccuracies in the finished document. However, many subjects of legal relations believe that the use of electronic documentation is unsafe from the point of view of ensuring the safety of information. In addition, they have doubts about the legality of transactions concluded in this form.

It's actually not that scary. Moreover, the benefits of electronic document management have already been appreciated by many legal entities and individuals working in various fields and interacting with regulatory authorities, counterparties, suppliers of goods, performers of work and services. By following the rules established by current civil legislation, you can use modern Internet technologies in the course of your daily activities without the risk of losing confidential information or entering into a transaction whose legality may be challenged.

Features of concluding an agreement electronically

According to paragraph 2 of Art. 434 of the Civil Code of the Russian Federation, concluding an agreement in writing is permitted by sending electronic documents via telecommunication channels, provided that the party that sent the document can be identified by the other party. To ensure the identification of the sender, as well as to prevent amendments to the document after it has been certified by the originator, it is necessary to use an electronic digital signature (EDS).

The use of digital signature, which is a guarantor of the validity of the information contained in the document when making transactions, in accordance with clause 2 of Art. 160 of the Civil Code of the Russian Federation, allowed. The concept of an electronic signature is established in paragraph 1 of Art. 2 of the Federal Law “On Electronic Signature” dated 04/06/2011 No. 63, according to which it is understood as information attached to an electronic document and allowing the identification of the person who signed it.

The use of a qualified electronic digital signature as a prerequisite for ensuring the legality of the contract

According to paragraph 1 of Art. 6 Federal Law No. 63, an electronic document can be recognized as similar in legal force to a document created on paper only if it is signed with a qualified digital signature.

Don't know your rights?

Qualified signature, in accordance with paragraph 4 of Art. 5 Federal Law No. 63, has the following characteristics:

1. Created by converting information using a special digital signature key.
2. Allows you to identify the person who signed the document.
3. Allows you to identify adjustments made to the document after it was signed.
4. Created using digital signature tools that comply with the law established requirements. That is why signatures belonging to this category are issued exclusively by certification centers accredited in the manner established by the order of the Ministry of Telecom and Mass Communications of the Russian Federation “On accreditation...” dated November 23, 2011 No. 320.

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5. Have the signature verification key specified in the qualified certificate.

The qualified certificate belonging to the signature used by the party to the agreement must be valid at the time of conclusion of the agreement - otherwise the transaction concluded using it will be invalid. This fact is confirmed by the existing judicial practice(in particular, by the resolution of the Federal Antimonopoly Service of the Central District in the case dated 04/07/2014 No. A62-2893/2011).

Conditions for using a simple or unqualified signature

A simple signature (i.e. created by the user by generating codes or passwords) can be used only if such a possibility is established by the parties to the transaction and does not contradict current legislation (for example, when concluding contracts based on the results of auctions held on electronic trading platforms, It is mandatory to use a qualified signature).

Under the same conditions, an unqualified digital signature can be used that meets the same requirements as a qualified signature, with the exception of the need to have a qualified certificate that contains the key to verify it. In addition, to obtain a non-qualified signature, it is not necessary to contact an accredited certification center, since any organization that has the technical ability to create it has the right to issue it.

Online contracts concluded by organizations with individuals

With the development of the Internet industry, a significant part of people’s lives has moved into the electronic space: increasingly, consumers purchase goods in online stores, pay for services with electronic money, and place orders for certain work to be performed by remote contractors. In this case, the parties also enter into an agreement by signing electronic copies of it.

In some cases, the consumer of the product (recipient of the service) does not take part in its development and does not make adjustments to the finished document - he can only agree with the provisions of the agreement proposed by the other party. A similar situation is typical, for example, for sales contracts concluded with online stores, the clients of which can be an unlimited number individuals. The procedure for concluding contracts of this type is subject to general rule, established by paragraph 1 of Art. 6 Federal Law No. 63: the consumer must sign an electronic document using a means that allows him to replace his handwritten signature, i.e., an electronic signature.

The specificity of concluding electronic contracts between organizations and individuals is that the latter, as a rule, do not have a qualified digital signature and do not plan to acquire it, since the service for its creation, provided by specialized certification centers, is paid. In this case, according to paragraph 2 of Art. 6 Federal Law No. 63, the consumer can use a simple electronic signature.

Ensuring the legality of using a simple electronic signature

To ensure the legality of transactions made using a simple digital signature, the consumer and the supplier must enter into an agreement on the terms of its use and include in it the conditions defining:

• recognition of the simple signature used as equivalent to the consumer’s handwritten signature;
• the procedure for generating a signature key (as a rule, such a key is an identification pair “login - password”, information about which is available only to the user);
• the procedure for identifying the owner of an electronic signature when concluding an agreement electronically;
• the obligation of the person using a simple digital signature to maintain its confidentiality.

An agreement on the use of a simple electronic signature can be concluded in one of the following ways:

1. Inclusion of a condition on working with a simple digital signature in the text of the concluded agreement. It is advisable to use such an approach during a one-time interaction between the parties, when further cooperation is not expected (for example, when fulfilling an order for photographing a certain object or event).
2. By entering information about the procedure for using a simple electronic signature in the additional agreement presented on the supplier’s website in the form of an offer. The use of such a technique is optimal when the consumer is expected to repeatedly use the service provided (for example, when using an online bank to carry out non-cash financial transactions).

The procedure for concluding an agreement electronically

To give an electronic document legal force, you must perform the following steps:

1. Draw up a draft agreement. In order to establish the provisions of the document and clarify its nuances at this stage, the parties can exchange electronic messages signed with an electronic signature. Exchange of such messages, in accordance with clause 4 of Art. 11 of the Federal Law “On Information...” dated July 27, 2006 No. 149, is equivalent to the exchange of paper documents submitted by the parties.
2. Conclude an additional agreement, indicating the chosen method of data exchange, as well as the type of electronic signature that will be used by the parties when signing the document. If the parties work with a qualified signature, there is no need to include information about it in the additional agreement.
3. Determine the method of implementing electronic document management. The best option is to involve in the exchange an intermediary who has the status of an electronic document management operator. It will not only provide the opportunity to transfer information through secure communication channels, but will also record the exact time of transfer of documents from one party to another. In the event that it is necessary to transfer a document before a certain time, but for technical reasons beyond the control of the sender it will not be delivered to the addressee (or delivered late), the moment of sending the transport container recorded by the operator’s server will become evidence of the sender’s good faith in further proceedings.
4. Sign the agreement with an electronic signature and send it to the addressee via telecommunication channels.

Legislative restrictions on concluding contracts electronically

According to paragraph 1 of Art. 6 Federal Law No. 63, an electronic document signed with a qualified electronic signature is not recognized as equivalent to a similar document drawn up on paper if the legislator establishes a requirement for the need to draw up such agreements exclusively on paper.

In particular, you cannot conclude electronically contracts that are subject to:

• mandatory notarization (for example, a gift agreement, purchase and sale of real estate, pledge of shares or rent);
• mandatory state registration(agreement for hiring or leasing real estate, shared construction, etc.).

At the same time, there are situations in which an agreement can only be concluded electronically. So, in accordance with paragraphs. 6 and 7 art. 70 of the Federal Law “On the Contract System...” dated 04/05/2013 No. 44, the contract between the customer and the contractor, the agreement on which was reached following the results of bidding on the electronic trading platform, must be signed with the electronic signatures of the winning bidder and the customer. Such a contract is considered concluded from the moment of its publication in a single information system provided that it is signed by the digital signature of both parties.

So, prerequisite ensuring the legitimacy of an agreement concluded electronically is the use by its parties of an electronic digital signature, which allows identifying the identity of each person who signed the document. The digital signature used can be either qualified or simple. Moreover, the latter is possible only if it does not contradict the provisions of the current legislation, and is also enshrined in the provisions additional agreement, concluded by the parties.

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