ecp agreement. Signing contracts between legal entities using EDS. Do I need to sign a document with a “live signature” and send a scan with a signature and seal
Is it possible to sign a contract with an electronic signature? What does this procedure look like, what documents (if applicable) is it accompanied by? Where can I check the eligibility of a signature?
yes, you can, only the contract must be signed by a qualified electronic signature.
When concluding an agreement, the parties can exchange written documents not only by mail of the Russian Federation, but also using electronic and other communications, which makes it possible to reliably establish that the document comes from the party under the agreement (clause 2 of article 434 of the Civil Code of the Russian Federation). Wherein an agreement signed with an electronic signature or another analogue of a handwritten signature, sent to the counterparty by e-mail, is considered as an exchange of documents (clause 4, article 11 of the Federal Law of July 27, 2006 No. 149-ФЗ “On Information, Information Technologies and Information Protection”).
This is due to the fact that 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 (clause 1, article 6 of the Federal Law of April 6, 2011 No. 63-FZ "On electronic signature").
Therefore, if your organization and counterparty have an electronic signature verification key certificate, it will be possible to exchange documents by e-mail without fear that the transaction will be invalidated, and the regulatory authorities will have claims to the documents being drawn up.
public services website. An interested person can confirm free of charge the authenticity of the electronic signature of a certificate issued by a certification authority included in the list of accredited certification centers and in the list of trusted certification centers of the Ministry of Communications of Russia. On the site, in the "Select a certificate to verify" field, select the certificate whose authenticity you want to confirm, and click the "Check" button. The screen will display information about the results of the certificate verification.
Rationale
(Colour highlights information that will help you make the right decision)
From the recommendation of Elena Smirnova, Director of Accounting Department, JSC Aeroflot, Elena Chistyakova, business coach, MBA teacher ExecutiveCoach, member of the International Association of Cross-Cultural Management
How to simplify the workflow in accounting
Step 5. Implement electronic document management
The transition to electronic document management is especially relevant for organizations whose activities involve an active and large-scale exchange of documents with counterparties. After all, the rejection of paper documents reduces the time required to reflect primary information in accounting.
In addition, electronic documents do not need to be printed and stored in paper form. Representatives of the Federal Tax Service of Russia agree with this (letters of the Federal Tax Service of Russia dated February 6, 2014 No. GD-4-3 / 1984, dated January 17, 2014 No. PA-4-6 / 489).
All documents sent and received via the Internet must be stored in electronic format in chronological order. Organize such an archive so that, if necessary, for example, at the request of the tax inspectorate, you can quickly find the requested documents and send them to the inspectorate in electronic form.
If your organization introduces electronic document management, then you will need to develop rules for creating, receiving and storing such primary documents and register them in the accounting policy (clause 4 PBU 1/2008).
The chief accountant advises: agree with counterparties that the exchange of documents will be carried out in electronic form.
This is possible if each party to the transaction has the necessary technical capabilities to receive and process these documents.
The fact that you exchange documents with counterparties, including in electronic form, should be said in the accounting policy.
From the recommendation of Viktor Anokhin, Doctor of Law, Professor, Honored Lawyer of the Russian Federation, Chairman of the Arbitration Court of the Voronezh Region, retired, Yulia Kopeeva, senior expert of Sistema Yurist, Maxim Kozlov, Deputy Head of the Legal Department of CJSC UKB Belgorodsotsbank
Is it possible to conclude an agreement by exchanging letters
The issue of concluding contracts by exchanging letters arises before a lawyer in the case when agreements between counterparties are reached through telephone conversations or using other means of communication (fax, telegraph, electronic). Sometimes the parties are in different regions. Or the parties, for some other reason, cannot sign a single written document.
It is especially important to regulate this issue if the organization plans to regularly conclude contracts precisely through the exchange of letters. In addition, often contracts through an exchange of letters are concluded not by lawyers, but by managers of the sales department and (or) the purchasing department. Managers need strict instructions for completing the offer and acceptance. Therefore, it is important to develop an approved form of documents (for example, a proposal to conclude a supply agreement, a service agreement) and provide for strict rules within the company on regulating relations with potential counterparties. In particular, the correspondence should make it possible to reliably establish that the document comes from the party under the contract (clause 2, article 434 of the Civil Code of the Russian Federation).
It is important to note that from June 1, 2015, a new article 434.1 “Negotiations on the conclusion of an agreement” appeared in the Civil Code of the Russian Federation. The legislator has established requirements for the conduct of negotiations, for the violation of which pre-contractual liability arises.
For more on this, see:
· The legislator regulated the relations of the parties during the negotiations;
· What should be considered by the parties when entering into negotiations on the conclusion of the contract.
In what ways can a contract be concluded
Transactions between legal entities must be made in a simple written form, with the exception of those transactions that require notarization. Such a rule is contained in paragraph 1 of Article 161 of the Civil Code of the Russian Federation. In addition, in some cases there is an additional requirement: a transaction made in a simple written form must be registered.
"Simple writing" does not mean that it must be exactly one document signed by both parties. The law provides for many ways to make transactions in simple writing. The contract can be concluded by:
drawing up one written document signed by the parties (clause 2 of article 434 of the Civil Code of the Russian Federation);
exchange of letters, telegrams, telexes, telefaxes and other documents (including electronic documents transmitted via communication channels) that make it possible to reliably establish that the document comes from the party under the contract (clause 2 of article 434 of the Civil Code of the Russian Federation);
· signing the protocol on the results of the auction. It has the force of an agreement in the case when the subject of the auction was precisely the conclusion of an agreement, and not the right to conclude an agreement (clause 5, article 448 of the Civil Code of the Russian Federation);
joining a contract, the terms of which are determined by one of the parties in forms or other standard forms (Article 428 of the Civil Code of the Russian Federation);
the commission by the person who received the offer within the period established for its acceptance, implicit actions to fulfill the conditions of the contract specified in it, including the shipment of goods, the provision of services, the payment of a sum of money, etc. (clause 3 of article 438 of the Civil Code RF);
issuance of a document necessary for the written form of the contract to be considered complied with. For example, for a storage agreement, such a document may be a safe receipt or another document signed by the custodian (clause 2, article 887 of the Civil Code of the Russian Federation);
sending an acceptance to an offer posted on the Internet.
An electronic document transmitted via communication channels is information prepared, sent, received or stored using electronic, magnetic, optical or similar means, including the exchange of information in electronic form and e-mail. Such a new concept was introduced by the legislator from June 1, 2015, paragraph 2 of paragraph 2 of Article 434 of the Civil Code of the Russian Federation.
What you need to check when concluding a contract
When concluding a contract by exchanging letters, a lawyer needs to perform a number of actions that would have to be done in the usual procedure for concluding a contract. For more information, see How to check a new counterparty using external sources of information (state registries, websites, media).
But two features of this method of concluding a contract should be taken into account.
First, you need to take a closer look at verifying the credentials of the signer. If the negotiations took place in the office of one of the parties, it would be easy to check the original documents (charter, licenses, etc.). When concluding an agreement “at a distance”, you need to request the necessary documents from the counterparty in order to eliminate legal risks. Otherwise, it may turn out that the correspondence will not have legal consequences for both parties, since the counterparty signed the documents by an unauthorized person.
Secondly, it is necessary that the full agreement of the parties on the essential terms of the contract be expressed clearly and unambiguously.
The ideal option is when one party sends an offer, and the other party sends consent to conclude a contract - acceptance.
Emails
The contract can also be concluded by sending letters by e-mail. This has raised many questions in the past. For example: do letters sent by e-mail have the same validity as letters sent by standard mail. But recently, with the development of Internet technologies, participants in civil circulation recognize the legitimacy of sent letters. The lawsuits do not even call into question the legitimacy of the fact that the exchange of letters is carried out not by mail, but by the Internet.
Case study: the court found that the parties entered into an agreement via e-mail, despite the fact that the agreement itself required the exchange of documents by facsimile
CJSC "T." filed a lawsuit to recover unjust enrichment in the amount of 640,000 RUB. and interest under Article 395 of the Civil Code of the Russian Federation in the amount of 12,400 RUB. The plaintiff challenged in court both the very fact of the conclusion of the work contract and the fact that the work was performed by the contractor.
The courts found that the parties agreed on all the essential terms of the contract and the defendant fulfilled his obligations. The courts responded to the plaintiff's argument as follows. Indeed, according to clause 9.2 of the contract, it is considered concluded through the exchange of documents by facsimile. Nevertheless, the court of cassation pointed out: “the courts correctly concluded that the fact that the documents were exchanged not by facsimile, but by e-mail” had no legal significance (decision of the Federal Antimonopoly Service of the Moscow District of September 19, 2011 in the case No. A40-125570/10-47-1097).
Attention! The main risk and complexity of using emails is how to prove that the email was sent by the counterparty and not by someone else.
After all, the law does not fix the obligation of the organization to have an e-mail. And even more so, there is no requirement that the name of the email address match the name of the organization. An email with any name can be created by anyone in three minutes. Therefore, even a complete match of the e-mail address and the name of the organization does not serve as proof that this message was received from this particular organization - the party to the contract.
Case study: the court did not accept electronic correspondence as evidence and listed what information was not enough for this
LLC "A." applied to the court with an application to invalidate the decision of the tax inspectorate regarding the refusal to reimburse 1,817,899 RUB. value added tax.
In order to prove the reality of the transactions made, LLC "A." submitted to the court reports of the attorney and electronic correspondence with contractors. The court did not accept a printout of the electronic correspondence. The court pointed out that such correspondence in itself does not indicate the reality of business transactions, since there were no e-mail addresses of the recipient and sender, information about the time and date of sending the e-mail, as well as the mail server from which the e-mail was sent (FAS Severo - Caucasian District of July 7, 2008 No. F08-3751 / 2008 in case No. A32-20193 / 2007-3 / 370).
If a dispute arises in court, it is necessary to refer to the following provision of the Arbitration Procedure Code:
“Documents received by facsimile, electronic or other communication, including using the Internet information and telecommunication network, as well as documents signed with an electronic signature or other analogue of a handwritten signature, are allowed as written evidence in cases and in the manner that established by this Code, other federal laws, other regulatory legal acts or an agreement, or determined within the limits of its authority by the Supreme Court of the Russian Federation” (Part 3, Article 75 of the Arbitration Procedure Code of the Russian Federation).
Based on the above norm by the Arbitration Procedure Code of the Russian Federation, if electronic correspondence is the main means of exchanging information between the parties to the transaction, then it makes sense to include a clause on the status of electronic correspondence directly in the contract.
For more information on this topic, see also Email Correspondence. Five ways to convince the court to accept it as evidence.
Electronic signature
By law, the procedure for concluding an agreement by exchanging electronic letters does not differ significantly from the usual procedure for exchanging letters on paper. But there are some features of recognizing an electronic document as equivalent to a document on paper.
The use of a facsimile reproduction of a signature by means of mechanical or other copying, an electronic signature or another analogue of a handwritten signature in transactions is allowed in cases and in the manner prescribed by law, other legal acts or agreement of the parties (clause 2 of article 160 of the Civil Code of the Russian Federation).
For the purpose of concluding agreements, the exchange of electronic messages, each of which is signed with an electronic signature or other analogue of a handwritten signature, in the manner prescribed by law or by agreement of the parties, is considered as an exchange of documents (clause 4, article 11 of the Federal Law of July 27, 2006 No. 149 -FZ "On information, information technologies and information protection").
As a general rule, 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 (Clause 1, Article 6 of the Federal Law of April 6, 2011 No. 63-FZ "On Electronic Signature" ; hereinafter - Law No. 63-FZ).
Signing with an unqualified electronic signature or a simple electronic signature is also recognized as an electronic document, equivalent to a paper document signed with a handwritten signature, but only in cases established by federal laws.
A huge role in confirming the authenticity of an electronic signature has a certificate of the electronic signature verification key. This is an electronic document or a paper document issued by a certification authority or an authorized representative of a certification authority. The certificate confirms that the electronic signature verification key belongs to the owner of the electronic signature verification key certificate. This is stated in part 2 of article 2 of the Law of April 6, 2011 No. 63-FZ.
Where can I get an electronic signature key
The electronic signature key can be obtained from the certification center.
Certification centers are divided into accredited and non-accredited. Accreditation is voluntary, it is carried out by the Ministry of Telecom and Mass Communications of Russia.
It is better to contact a certification center that has state accreditation. The list of accredited certification centers is listed on the ministry's website.
Only in an accredited certification center can you get a qualified signature key, which is needed, for example, to submit electronic reporting. A qualified electronic signature has additional protection - a verification key, which is issued by accredited certification centers.
In order for the certification center to produce an electronic signature key, the following documents must be submitted:
1) to an individual:
· the applicant's passport or other identification of the future owner of the electronic signature key;
certificate of pension insurance of the future owner of the electronic signature key (where SNILS is indicated);
2) organizations:
constituent documents;
an extract from the Unified State Register of Legal Entities;
certificate or other document on state registration;
certificate of registration with the tax office;
Documents that confirm the authority of the head (for example, the decision to elect);
· translation into Russian of state registration documents issued abroad (for a foreign organization).
An electronic signature key can be issued to an entrepreneur or a specific employee who has the right to sign paper documents on behalf of the organization (paragraph 4, clause 3.3 of the Technology for accepting insurers' settlements on accrued and paid insurance premiums in the system of the Social Insurance Fund of the Russian Federation in electronic form using electronic digital signature approved by order of the FSS of Russia dated February 12, 2010 No. 19; clause 3 of the Procedure for the use of qualified certificates of electronic signature verification keys in information systems of the Federal Tax Service of Russia, approved by order of the Federal Tax Service of Russia dated April 8, 2013 No. ММВ-7-4/142 ).
If there are several employees with the right to sign, a personal electronic signature key is issued for each of them. As a rule, such employees include the head, deputy head, financial director, chief accountant of the organization. It is important to note that if the electronic signature is not issued to the head of the organization (for example, in the name of the chief accountant, head of the contract department), it is necessary to present a power of attorney for the right to sign documents.
After submitting the documents, the certification center must issue an electronic signature key. A specific certification center in its regulations establishes the term and procedure for the production of an electronic signature key certificate. As a result, the owner of the electronic signature receives:
a key for creating a signature recorded on a storage medium (for example, on a usb-drive);
a qualified certificate containing a key for verifying an electronic signature.
The certificate is proof that its owner has a key to create a signature, and this can be verified using a certificate (Article 17 of Law No. 63-FZ). A sample certificate can be found, for example, on the website of the FSS of Russia.
How can I verify the authenticity of the counterparty's electronic signature
You can check the authenticity of the electronic signature on the website of public services. This service is designed to confirm the authenticity of an electronic signature. The user can confirm for free the authenticity of the electronic signature of a certificate issued by a certification authority that is part of
Civil circulation has long required the transition of business to electronic document management. However, the transition to electronic documents, including the transition to conclusion of transactions in electronic form, are actively hindered by regulatory authorities (especially tax services), which, as a rule, cannot and do not want to perceive the trends and needs of turnover, do not understand and, apparently, are afraid of the Internet and modern technologies. Tax authorities, as a rule, do not consider concluded transactions that are executed by signing an agreement not with a handwritten signature, but via the Internet using an electronic digital signature (EDS) or other analogue of handwritten signature(ASP), including facsimile. In general, they rarely perceive electronic documents as legally significant and valid documents.
Requirements tax and other regulatory authorities on the conduct of paper document management, on affixing handwritten signatures on contracts, acts, invoices, invoices and other documents are not based on the law.
The law expressly provides for various options for concluding contracts in writing. Drawing up a contract in paper form and signing it with your own hand is far from the only option for concluding a transaction in writing, as the tax authorities are trying to present. Although, for the sake of fairness, we note that recently the tax authorities have been informing that they recognize contracts signed with an electronic digital signature as concluded in a simple written form, but for some reason they refuse to accept documents signed other analogue of a handwritten signature.
We propose to contribute to the struggle for a change in the approach to concluding contracts and document management, which is followed by the tax authorities. Moreover, such a struggle has begun and, moreover, the courts take the side of the participants in civil transactions, taxpayers and quite rightly recognize the legal force of documents signed by an analogue of a handwritten signature, which the parties to the agreement exchanged via the Internet (for example, by e-mail).
Below, you are offered a legal justification for the validity of contracts concluded in electronic form and the legality of electronic document management.
Please note that from 08.04.2011 a new law on electronic signature came into force. At its core, a simple electronic signature also applies to the analogue of a handwritten signature previously provided for by the Civil Code, discussed in this legal commentary, therefore the recommendations and comments given here are still relevant, but taking into account the legal commentary.
Legal grounds for concluding contracts in electronic form
For most transactions, a simple written form is acceptable, unless otherwise expressly provided by law for a particular category of transactions.
Article 161. Transactions made in simple written form
1. Should be made in a simple written form, with the exception of transactions requiring notarization:
1) transactions of legal entities between themselves and with citizens;
2) transactions of citizens among themselves for an amount exceeding at least ten times the minimum wage established by law, and in cases provided for by law, regardless of the amount of the transaction.
2. Compliance with a simple written form is not required for transactions that, in accordance with Article 159 of this Code, can be made orally.
Article 159. Oral transactions
1. A transaction for which a written (simple or notarial) form is not established by law or by agreement of the parties may be concluded orally.
2. Unless otherwise established by agreement of the parties, all transactions that are executed at the time of their very conclusion may be concluded orally, with the exception of transactions for which a notarial form is established, and transactions for which non-observance of a simple written form entails their invalidity.
3. Transactions in pursuance of an agreement concluded in writing may, by agreement of the parties, be made orally, unless this contradicts the law, other legal acts and the agreement.
There are two things to keep in mind when signing a contract:
- way of signing the contract by the parties AND
- the procedure (method) for concluding an agreement in writing.
Accordingly, when concluding an agreement in electronic form, it is necessary to answer two questions - how the parties will sign the documents and how they will be exchanged.
Method of signing contracts in electronic form
The parties may agree that they recognize legal force for documents signed by an analogue of a handwritten signature (clause 2, article 160 of the Civil Code). The Civil Code directly classifies the facsimile reproduction of a signature (facsimile) and an electronic digital signature as analogues of a handwritten signature, while leaving the list of acceptable ASA open. In other words, the parties to the contract themselves have the right to determine the analogue of the handwritten signature used by them and the procedure for signing the contract with such an HSA.
Civil Code
Article 160. Written form of a transaction
1. A transaction in writing must be made by drawing up a document expressing its content and signed by the person or persons making the transaction, or persons duly authorized by them.
Bilateral (multilateral) transactions may be made by the methods established by paragraphs 2 and 3 of Article 434 of this Code.
The law, other legal acts and agreement of the parties may establish additional requirements that the form of the transaction must comply with (execution on a letterhead of a certain form, affixing with a seal, etc.), and provide for the consequences of non-compliance with these requirements. If such consequences are not provided for, the consequences of non-observance of the simple written form of the transaction shall apply (paragraph 1 of Article 162).
2. The use of facsimile reproduction of a signature by means of mechanical or other copying, electronic digital signature or other analogue of a handwritten signature in transactions is allowed in cases and in the manner prescribed by law, other legal acts or by agreement of the parties.
3. If a citizen, due to a physical handicap, illness or illiteracy, cannot sign with his own hand, then at his request another citizen can sign the transaction. The signature of the latter must be certified by a notary or other official who has the right to perform such a notarial act, indicating the reasons for which the person making the transaction could not sign it with his own hand.
However, when making transactions specified in paragraph 4 of Article 185 of this Code, and powers of attorney for their completion, the signature of the one who signs the transaction may also be certified by the organization where the citizen who cannot sign with his own hand works, or by the administration of the inpatient medical institution in which he is in recovery.
3. Documents received by facsimile, electronic or other communication, as well as documents signed electronic digital signature or other analogue of a handwritten signature are allowed as written evidence in cases and in the manner established by federal law, other regulatory legal act or treaty.
Method of concluding a contract in writing
Of practical interest in relation to the conclusion of contracts in electronic form are the following two methods:
- An agreement in writing can be concluded by drawing up one document signed by the parties, as well as electronic or other communication, allowing to reliably establish that the document comes from the party under the contract (clause 2 of article 434 of the Civil Code).
- The conclusion of an agreement in electronic form by sending an offer by one party to the agreement (including, for example, the text of the agreement itself), and by the other party accepting it by making the so-called. implicit actions, i.e. taking actions to fulfill the terms of the contract specified in the offer (clause 3 of article 434 and clause 3 of article 438 of the Civil Code).
Civil Code
Article 434. Form of the contract
1. An agreement may be concluded in any form provided for transactions, unless a specific form is established by law for agreements of this type.
If the parties have agreed to conclude a contract in a certain form, it is considered concluded after giving it the agreed form, even if such a form is not required by law for contracts of this type.
2. Treaty in writing can be concluded by drawing up one document signed by the parties, as well as by exchanging documents through postal, telegraph, teletype, telephone, electronic or other communication, which allows you to reliably establish that the document comes from the party under the contract.
3. The written form of the contract is considered to be observed if the written proposal to conclude the contract is accepted in the manner prescribed by paragraph 3 of Article 438 of this Code.
Article 435. Offer
1. An offer is recognized as an offer addressed to one or several specific persons, which is sufficiently specific and expresses the intention of the person who made the offer to consider himself to have entered into an agreement with the addressee who will accept the offer.
The offer must contain the essential terms of the contract.
2. The offer binds the person who sent it from the moment it is received by the addressee.
If the notice of withdrawal of the offer was received earlier or simultaneously with the offer itself, the offer shall be deemed not received.
Article 438. Acceptance
1. Acceptance is the response of the person to whom the offer is addressed about its acceptance.
The acceptance must be complete and unconditional.
2. Silence is not an acceptance, unless otherwise follows from the law, customary business practice or from previous business relations of the parties.
3. Commitment by the person who received the offer, within the period established for its acceptance, actions to fulfill the terms of the contract specified in it(shipment of goods, provision of services, performance of work, payment of the appropriate amount, etc.) considered an acceptance unless otherwise provided by law, other legal acts or specified in the offer.
Arbitration Procedure Code
Article 75. Written evidence
3. Documents received by facsimile, electronic or other communication, as well as documents signed with an electronic digital signature or other analogue of a handwritten signature, allowed as written evidence in cases and in the manner established by federal law, other regulatory legal act or treaty.
Code of Civil Procedure
Article 71. Written evidence
1. Written evidence is containing information about the circumstances relevant to the consideration and resolution of the case, acts, contracts, certificates, business correspondence, other documents and materials made in the form of a digital, graphic record, including those received by facsimile, electronic or other communication or in any other way allowing to establish the authenticity of the document.
Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 dated 07/01/1996 "On some issues related to the application of part one of the Civil Code of the Russian Federation"
58. When resolving pre-contractual disputes, as well as disputes related to the fulfillment of obligations, it must be borne in mind that acceptance, along with a response on the full and unconditional acceptance of the terms of the offer, is recognized as the commission by the person who received the offer, within the time period established for its acceptance, actions to fulfill the conditions of the contract specified in it, unless otherwise provided by law, other legal acts or the contract (paragraph 3 of Article 438).
It should be taken into account that to recognize the relevant actions of the offeree as acceptance The Code does not require fulfillment of the terms of the offer in full. For these purposes, in order to qualify these actions as an acceptance, it is sufficient that the person who received the offer (including the draft contract) starts its execution on the conditions specified in the offer and within the time period established for its acceptance.
So, if the parties decide to conclude a deal remotely, without exchanging "paper" contracts signed with their own hands, they can resort to the electronic form of the contract and sign it with an "electronic signature", which is expressly allowed by the current legislation.
To do this, according to the requirement of paragraph 2 of Art. 160 of the Civil Code in the text of the agreement it should be expressly provided that the parties recognize the legal force behind documents signed by an analogue of a handwritten signature.
Determination of the Supreme Arbitration Court of the Russian Federation No. 653/08 of 02/07/2008
At the same time, the courts proceeded from the provisions of Article 160 of the Civil Code, according to which the use of a facsimile reproduction of a signature using mechanical or other copying means, an electronic digital signature or another analogue of a handwritten signature in transactions is allowed in cases and in the manner prescribed by law, other legal acts or agreement of the parties.
The courts did not establish that the parties entered into any written agreements on the use of facsimile reproduction of the signature in transactions, including the execution of consignment notes. At the same time, the courts indicated that the contract for the supply of goods dated 01.12.2005, being by its legal nature a transaction and also signed by facsimile, cannot be evidence of the conclusion of such an agreement by the parties, considering the absence in its text of a specially stipulated condition.
At the same time, the parties to the agreement it is necessary to agree on what exactly will be an analogue of a handwritten signature. This can be a login and password for an account on the site, an email address, etc. As one of the most successful universal options, you can recommend exactly the email address, because. only specific persons have access to their electronic mailbox, and messages are recorded (stored) on mail servers (such documents are more reliable in terms of evidence). E-mail address can actually (but not legally, because legally the law directly provides for requirements for EDS) be considered as a kind of electronic digital signature, and in fact and legally, it will be an analogue of a handwritten signature.
We strongly recommend that all correspondence (incoming and outgoing), including the contract itself and related correspondence, be stored on mail servers (storing it only on a computer in case of a dispute may not be enough).
For this purpose, an email address on gmail.com is best suited (by the way, Google mail service can also be used for your corporate mailboxes#oi#dex> with your own domain name). Google (Gmail) ensures the preservation of both incoming and outgoing messages, including those sent through your email client (Outlook, TheBat, etc.), and is also owned by a large, reputable company, and therefore trust in the evidence stored on email Google servers may be higher than other mail servers, owned by a hosting provider, for example, or generally hosted on your own servers.
For greater reliability of an electronic transaction, we also recommend taking into account paragraph 3 of Art. 434 and paragraph 3 of Art. 438 of the Civil Code (providing for the conclusion of a transaction by performing conclusive actions) make a payment (or advance) for your electronic transaction by bank payment, on appointment which indicate the number of your electronic contract, the date of its conclusion, as well as the e-mail addresses of the parties (or only the payer), which are used by the parties for the exchange of electronic documents and are recognized by them as an analogue of a handwritten signature.
Such a note to the payment and the preservation of all correspondence on mail servers will serve as proof that the contract (offer) sent by the contractor (seller) and the acceptance of the contract received by him from the customer (buyer) really came from the parties to the electronic transaction. And the parties will thus fulfill the requirement of paragraph 2 of Art. 434 of the Civil Code that when exchanging documents by means of communication, it should be possible to establish that the document comes from the party under the contract.
It is also possible to add to contracts, acts, invoices drawn up in electronic form facsimile(having directly provided for such an opportunity in the electronic contract - as mandatory or possible, at the request of the party). Thus, when printing these documents, they will display a copy of the handwritten signature: in some cases, tax authorities, banks, etc. an ordinary copy of the document is sufficient, i.e. and it is not necessary to draw their attention to the fact that the contract is concluded in electronic form and signed by an analogue of a handwritten signature.
For the parties to the contract using the WebMoney payment system in their activities and, moreover, making payments under the contract through WebMoney, we can recommend when concluding an agreement in electronic form, use the WebMoney system, namely the "Contracts" service of WebMoney Arbitration, which allows registered WebMoney users to upload their contract to the server and sign it with an analogue of a handwritten signature. This method of concluding and signing an agreement in electronic form will be more reliable if the parties to the agreement have personal WebMoney certificates.
It is quite acceptable to conclude an electronic transaction by publishing by the contractor public offer on the site and its acceptance by customers by performing conclusive actions, however, the recommendations in this part would require a significant increase in the volume of this legal commentary, and therefore we will not delve into this method of concluding electronic contracts here.
Tax and Accounting Legislation Regarding Electronic Transactions
Why do tax officials and accountants consider contracts in electronic form to be unconcluded, and why is electronic document management illegal?
The first, probably because they are far from understanding the electronic document management and see many risks in it. Although, in fact, the risks are not higher than, for example, when exchanging personally signed contracts by mail or courier - where is the guarantee that the contract was actually signed by the CEO? Yes, even a notarized transaction does not give 100% guarantees.
Accountants have no choice but to comply with unreasonable tax requirements. An accountant is not a lawyer, his task is to keep accounts without unnecessary questions from the tax authorities, and therefore an accountant, as a rule, will comply with any tax requirements (including illegal ones), if only to protect the enterprise from unnecessary questions from the tax authorities, from tax audits and penalties.
The head of the enterprise needs to decide how profitable it is for him to lose, for example, remote clients or even conduct paper document management, whether it is worth using the services of a lawyer once in case of tax claims, and then carry out his activities without any problems, calmly concluding transactions via the Internet. Each enterprise, business needs to evaluate its scheme of activity, weigh the risks and, if necessary, develop a clear procedure for concluding contracts in electronic form and the very form of an electronic contract in order to be able to defend the legality of its electronic document management in case of tax claims.
In fact, there are no legal obstacles to the conclusion of contracts in electronic form, as well as to the preparation of electronic invoices, acts and even invoices.
The Civil Code expressly allows the signing of contracts (and, accordingly, all related documentation) not only with a handwritten signature, but also with an analogue of a handwritten signature, including a facsimile, an electronic digital signature and any other analogue of a handwritten signature, which the parties to the transaction agree on.
Neither the Tax Code nor the Law on Accounting contain requirements for documents that they must be signed with a handwritten signature.
Federal Law No. 129-FZ of November 21, 1996 "On Accounting"
Article 9. Primary accounting documents
1. All business transactions carried out by the organization must be documented with supporting documents. These documents serve as primary accounting documents on the basis of which accounting is maintained.
2. Primary accounting documents are accepted for accounting if they are drawn up in the form contained in the albums of unified forms of primary accounting documentation, and documents, the form of which is not provided for in these albums, must contain the following mandatory details:
a) the name of the document;
b) date of preparation of the document;
c) the name of the organization on behalf of which the document was drawn up;
e) measuring instruments of economic transactions in physical and monetary terms;
f) the names of the positions of persons responsible for the business transaction and the correctness of its execution;
g) personal signatures the indicated persons.
3. The list of persons entitled to sign primary accounting documents is approved by the head of the organization in agreement with the chief accountant.
Documents used to formalize business transactions with cash are signed by the head of the organization and the chief accountant or persons authorized by them.
4. The primary accounting document must be drawn up at the time of the transaction, and if this is not possible - immediately after its completion.
Timely and high-quality execution of primary accounting documents, their transfer within the established time limits for reflection in accounting, as well as the reliability of the data contained in them, is ensured by the persons who compiled and signed these documents.
7. Primary and consolidated accounts documents can be drawn up on paper and machine media information. In the latter case, the organization is obliged to produce at its own expense copies of such documents on paper for other participants in business transactions, as well as at the request of the bodies exercising control in accordance with the legislation of the Russian Federation, the court and the prosecutor's office.
tax code
6. Invoice signs the head and chief accountant of the organization or other persons authorized to do so by an order (other administrative document) for the organization or a power of attorney on behalf of the organization. When issuing an invoice by an individual entrepreneur, the invoice is signed by an individual entrepreneur indicating the details of the certificate of state registration of this individual entrepreneur.
The Accounting Act requires source documents to contain "personal signature", which does not have to be handwritten. "Personal" indicates that the signature belongs to a specific person, "personal" does not mean "handwritten". In other words a personal signature can also be in the form of an analogue of a handwritten signature, including electronic digital signature, facsimile, etc. The Tax Code also requires a signature in documents, but does not limit its appearance to a handwritten signature.
The proposed approach to terminology is also shared by the courts (see, for example, the Decree of the FAS MO in case No. КА-А40 / 2727-03 - the text of the decision is given in excerpts from judicial practice at the end of this legal commentary).
Thus, it can be stated that the previous practice (when a facsimile was not considered a personal signature, but in relation to invoices, for example, it was said that the legislation does not provide for such a method of signing) has changed and changed for the better, in the right direction.
A VAT deduction can also be obtained on an invoice drawn up in electronic form and signed with an analogue of a handwritten signature (for example, a facsimile).
Please note that this legal comment does not guarantee you the absence of tax problems in the case of transactions in electronic form and electronic document management. Its purpose is to show that the conclusion of transactions in electronic form is not only legal, but also practically possible and permissible, as well as electronic document management. However, in practice, problems of various kinds may arise and one must be ready to overcome them (but this does not mean that they are insurmountable). Yes, even
Ministry of Finance of the Russian Federation
Letter No. 03-02-08/85 dated 11/26/2009
Question: 1. Is it possible, in the presence of a written agreement, which provides for the recognition of an electronic digital signature, in future work, to sign primary documents under this agreement with an electronic digital signature, namely new agreements, additional agreements, invoices, acts?
2. Will the primary documentation issued in the form of electronic documents signed with an electronic digital signature be accepted by the tax authorities? Isn't such registration of primary documents a violation of the procedure for maintaining accounting and tax records at an enterprise, established by the legislation of the Russian Federation?
3. Will the documentation drawn up in the form of electronic documents signed with an electronic digital signature be accepted as evidence in the courts of the Russian Federation?
Answer: The Department of Tax and Customs Tariff Policy has considered the application on the use of primary documents, accounting and tax accounting documents in electronic form and reports the following.
According to paragraph 1 of Article 1 of the Federal Law of January 10, 2002 No. 1-FZ "On Electronic Digital Signature" (hereinafter - Law No. 1-FZ), the purpose of the said Federal Law is to ensure the legal conditions for the use of an electronic digital signature in electronic documents, subject to which an electronic digital signature in an electronic document is recognized as equivalent to a handwritten signature in a document on paper.
Law No. 1-FZ applies to relations arising from civil law transactions and in other cases provided for by the legislation of the Russian Federation (paragraph 2 of Article 1 of Law No. 1-FZ).
The conditions for recognizing the equivalence of an electronic digital signature and a handwritten signature are established by Article 4 of Law No. 1-FZ.
In accordance with paragraph 1 of Article 252 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), for the purposes of Chapter 25 "Corporate Income Tax", reasonable and documented costs (and in the cases provided for by Article 265 of the Code, losses) incurred (incurred) are recognized as expenses taxpayer.
Documented expenses are understood as expenses confirmed by documents drawn up in accordance with the legislation of the Russian Federation, or documents drawn up in accordance with the customs of business turnover applied in a foreign state on the territory of which the corresponding expenses were made, and (or) documents indirectly confirming expenses incurred (including a customs declaration, a business trip order, travel documents, a report on the work performed in accordance with the contract). Expenses are recognized as any expenses, provided that they are made for the implementation of activities aimed at generating income.
Article 9 of the Federal Law of November 21, 1996 No. 129-FZ "On Accounting" (hereinafter - Law No. 129-FZ) establishes that all business transactions conducted by an organization must be formalized with supporting documents. These documents serve as primary accounting documents on the basis of which accounting is maintained.
Primary and consolidated accounting documents can be compiled on paper and machine media. In the latter case, the organization is obliged to produce at its own expense copies of such documents on paper for other participants in business transactions, as well as at the request of the bodies exercising control in accordance with the legislation of the Russian Federation, the court and the prosecutor's office.
Primary accounting documents are accepted for accounting if they are drawn up in the form contained in the albums of unified forms of primary accounting documentation, and documents whose form is not provided for in these albums must contain the mandatory details provided for in paragraph 2 of Article 9 of Law No. 129-FZ.
Article 313 of the Code defines tax accounting as a system for summarizing information for determining the tax base for a tax based on the data of primary documents grouped in accordance with the procedure provided for by the Code.
Given the above, we believe that, unless otherwise provided by the regulatory legal acts of the Russian Federation, primary documents, accounting and tax accounting documents can be compiled in electronic form and certified by an electronic digital signature of persons responsible for the performance of business transactions and the correctness of their execution, subject to the conditions established by Law No. 1-FZ.
Deputy Director of the Department
S.V. Razgulin
Recall that an EDS is one of the types of an analogue of a handwritten signature, therefore this position of the Ministry of Finance can be extended in its own interests to other ASPs, including facsimile, e-mail, etc.
Although literally at the beginning of 2009, the Ministry of Finance expressed a different position, probably without considering the contradictions. The following letter from the Ministry of Finance only indicates that the battle for electronic document management is still to be continued, although in judicial practice electronic transactions and electronic document management are confidently recognized with their correct legal execution.
Question: About the absence of grounds for using invoices drawn up using a facsimile signature as a condition for accepting VAT for deduction, since such invoices are drawn up in violation of the established procedure.
MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION
The Tax and Customs Tariff Policy Department has reviewed the letter on the legality of using a facsimile signature when filling in invoices and informs.
According to paragraph 1 of Art. 169 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), an invoice is a document that serves as the basis for the buyer to accept the goods (works, services, property rights) presented by the seller for the deduction of value added tax amounts.
In accordance with paragraph 6 of Art. 169 of the Code, the invoice is signed by the head and chief accountant of the organization or other persons authorized to do so by an order (other administrative document) for the organization or a power of attorney on behalf of the organization.
Paragraph 2 of Art. 160 of the Civil Code of the Russian Federation provides that the use of facsimile reproduction of a signature by means of mechanical or other copying, electronic digital signature or other analogue of a handwritten signature in transactions is allowed in cases and in the manner prescribed by law, other legal acts or agreement of the parties.
The use of invoices signed with a facsimile signature is not provided for by the legislation of the Russian Federation.
Thus, invoices drawn up using a facsimile signature are drawn up in violation of the established procedure and cannot be the basis for accepting the tax amounts presented to the buyer by the seller for deduction.
Deputy Director
Department of Tax
and customs tariff policy
Link to the page: Concluding an agreement in electronic form (via the Internet, by fax, etc.) and electronic document management. Electronic signature and written form (author Vadim Kolosov)
The Federal Law of April 6, 2011 adopted the legal force of the EDS. According to the accepted provisions, the signature looks like a simple image. It allows you to sign a legal document, a sales contract or similar documentation.
The use of an electronic signature sample confirms the consent of the responsible person to the service or the conclusion of the agreement. The strength and significance of an EDS is recognized on a par with a hand-signed version.
The use of EDS simplifies the issues of document flow. Its power allows you to speed up the process of transferring information about the consent of the party to the service or action. A signature is applicable in cases where a system for receiving / transmitting a digital electronic signature is supported.
An image is valid if it is correctly registered and entered in the register. It is recommended to carry out these actions not on your own, but by contacting specialists. This will eliminate errors when creating a sample, and guarantee the validity of the information provided.
What makes EDS legally valid
Let's analyze the question, which confirms the legal significance of the electronic signature. Reference: 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 the signature. Information on paper is an independent object. The identification mark applied by hand on it is intended to confirm its authenticity. The process of its creation does not challenge the credibility of the involvement of the responsible person.
The digital option implies the possibility of third-party intervention. Only the use of a certified key confirms the relationship of the subject to the formation of the document. Only the owner or responsible authorized person can access the encrypted data.
It is thanks to the entry of data about the owner into the electronic document management system (EDMS) that an agreement signed with an electronic signature has legal force. It allows reaching an agreement between the parties on the recognition of the equivalence of paper and digital media. This is the power of the electronic signature form.
formalized documents
In EDMS, formal documents are:
reporting
invoices
employment contract with
employee working for
remote basis
claimed
documents, description
The signature takes on legal significance if it conforms to the format and the conditions for the execution of the signature are met. It is necessary to transfer electronic information strictly according to the protocols. If, after verification, the authenticity of the delivered sign is confirmed, the contract is officially recognized. The signature format must comply with the rules for the registration of a qualified ES (QES).
Upon receipt of such an agreement, the party has the right to check through the relevant systems. The encrypted signature on information (CES) is by default considered equal to the creation of a document by hand. It has legal force, is recognized on a par with the handwritten version. Such an electronic contract with the image of a signature, the legal force of which is recognized as significant, is regulated by the state.
informal documents
The recognized legal force of the electronic signature of the CEP format confirms that the responsible person created the document with his own hand. Thus, the carrier is official.
The list of formal document flow includes categories:
treaties
powers of attorney
business card sheets
checklists, etc.
Such options are allowed to be signed in a simple way or with an unqualified signature. All persons involved in the creation of an EDI conclude 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 prescribes the format of the media, the conditions for processing details and their content. All details, nuances and trifles are taken into account. It is this agreement that makes it possible to recognize the authenticity or unreliability of an image in the course of determining its legal force.
Equivalence of EDS with a paper document
For many, the question is whether an electronic signature is valid on a par with a paper version. Legal force is recognized for the carrier if it contains the appropriate details.
If necessary, the handwritten version is compared with the samples recorded in the databases from the passport office and the tax office. For ES, this is a separate database that contains complete information about the owner. These data are entered during the registration of a digital autograph, must have a complete list of information without errors and 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 intricacies of design and purpose, it can be used in the creation of contracts, agreements, etc. Electronic media are recognized by law, in which the necessary details are affixed.
Our company provides EDS registration and registration services. Fast and competent establishment of databases is guaranteed. Our experts will carry out the entire operation, from collecting details to installing 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 has a democratic framework.
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Question
Is it possible to sign contracts between legal entities using EDS? What is the judicial practice on the recognition of contracts signed with the help of EDS concluded.
Answer
Yes, you can. In this case, the possibility of using the EDS should be specified in the contract.
For details on this, see the materials in the rationale.
The rationale for this position is given below in the materials of "Systems Lawyer" .
« 2. Use an electronic signature. The exchange of electronic messages with an electronic signature for the purpose of concluding contracts is considered as an exchange of documents (clause 4, article 11 of the Federal Law of July 27, 2006 No. 149-FZ “On Information, Information Technologies and Information Protection”). That is, it is enough to have two messages (one each from the buyer and the supplier) with an electronic signature for the supply contract to be considered concluded. No additional evidence that the document comes from a party to the contract is required.
As a general rule, information in electronic form, signed, is recognized as an electronic document, equivalent to a paper document signed with a handwritten signature (clause 1, article 6 of the Federal Law of April 6, 2011 No. 63-FZ "On Electronic Signature"; hereinafter - Law No. 63-FZ).
Today, when almost the entire workflow is becoming paperless, signing documents with the help is a common thing.
In the field of public procurement, submitted applications are signed with an electronic signature. This gives customers the assurance that they are dealing with real participants. Also, contracts that are concluded as a result of public procurement come into effect only after they are approved with the help of an EDS.
Also, a digital signature is required in such situations:
- Reporting for regulatory authorities. You can submit it electronically to such services as the Federal Tax Service, Rosstat, PFR and FSS. This greatly simplifies the transfer of information and improves correctness: most services offer automatic error checking.
- Electronic document management (EDM). One of the most common applications, since a letter signed in this way corresponds to a paper one with a seal and a visa. Allows you to switch to paperless workflow both inside and outside the company.
- State services. A citizen of the Russian Federation can endorse applications submitted to departments through the public services portal, participate in public initiatives, use a personal account on the website of the Federal Tax Service, and even apply for a loan.
- As evidence, you can use invoices, contracts, official letters signed electronically. According to the APC of the Russian Federation, such a document is an analogue of a paper one with a handwritten visa.
What are electronic signatures
An EDS is a "stamp" that allows you to identify its owner, as well as verify the integrity of the signed document. The types of EDS and the procedure for their execution have been approved. He established that there are three types of signatures:
- Simple. Common for signing letters or specifications, confirmed using passwords, codes and other means, most often used in corporate EDI systems.
- Reinforced. It is obtained in the process of cryptographic processing of information and the use of a private key. Allows you to establish who signed the document, as well as the fact that changes were made after signing.
- Reinforced. It is similar to the unqualified one, but for its creation and verification, cryptoprotection developments certified by the Federal Security Service of the Russian Federation are used. Such ES are issued only by accredited
There are several ways to endorse a document. Let's consider the most common ones.
We sign using the CryptoPRO CSP software package
How to sign a Word document with an electronic signature(MS Word)
1. Open the desired file, click on the menu "File" - "Details" - "Add electronic signature (CRYPTO-PRO)".
2. Select the desired ES, add a comment, if necessary, and click "Sign".
3. If there are no errors, the system displays a window with successful signing.
If the CryptoPRO Office Signature plugin is installed
1. Open the desired file, select "File", then - "Add digital signature".
2. Similarly to the previous option, select the required ES, add, if necessary, a comment and click "Sign".
3. If there are no errors, the system displays a message that the document has been successfully signed.
How to electronically sign a PDF document(Adobe Acrobat PDF)
1. Open the required PDF file, click on the "Tools" panel and see the "Certificates" label. We select it.
2. Click on "Digital Signature" and select the area on the file where the signing mark will be located.
4. A window with a preview of the stamp will open. If everything is correct, then click "Sign".
5. The system will issue a notification about successful signing. That's all.
Signing by the CryptoARM software package
With this method, it is possible to encrypt all modern formats, as well as archives.
So let's figure it out how to sign a digital signature document with the help of CryptoARM.
1. Open the "CryptoARM" program and select the very first action item - "Sign".
2. We carefully study the instructions of the ES Creation Wizard. We press "Next".
3. Click on "Select file", go to the desired file, click on it and click "Next".
4. Select the file to be signed, click "Next".
5. We see the "Output Format" window. If there are no mandatory requirements, then the encoding is left as is. You can save in ZIP format (for sending by e-mail) or choose where to save the final result. Click "Next".
6. In the "Parameters" you can select a property, add a comment, and also select an attached ES (attached to the source file) or detached (saved as a separate file), as well as additional parameters as desired. When everything is ready, click "Next".
7. Now you need to select a certificate, to do this, click "Select", specify the required certificate and click "Next".
8. At the next stage, we see the final window with a brief description of the data. If next time the files are signed in the same order, then you can save the profile. Click "Finish".
9. If there are no errors, the system will display a message about successful signing.
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