What is an Electronic Signature?
Generally speaking, an electronic signature (or e-signature) is a technical process logically associated with a document which two (or more) individuals or organizations (the signatories) agree to rely on in order to express their intent to sign such document. Three components are therefore necessary: a document, a signatory and an e-signature tool. While the tool most commonly used for handwritten signatures is a simple pen, electronic signature tools are typically more complex.
From a regulatory standpoint, an electronic signature is a broad category that encompasses many types (or levels) of electronic signatures. Depending on the country it is used in, there are differences in purpose, legal acceptance, technical implementation and cultural acceptance of electronic signatures.
In particular, e-signature requirements tend to vary significantly between most “civil law” countries (including the European Union and many countries in South America and Asia), and most “common law” countries (such as the United States, Canada and Australia). Civil law countries typically support a “tiered” approach including higher levels of signature often called digital or qualified electronic signatures (typically required for specific types of contracts), as opposed to common law jurisdictions which are typically more technology-neutral.
In addition, some industries (such as healthcare or banking) and documents (such as marriage or adoption contracts) may require a higher level of e-signature.
What are the laws and regulations in South Korea?
In South Korea, seals (printing stamps personalized to the individual) have been traditionally used on important legal documents, either by themselves or in conjunction with handwritten signatures. South Korea’s Digital Signature Act accounts for this by providing for two types of permitted signatures: certified digital signatures and digital signatures that do not have certification.
A certified digital signature in South Korea is considered to have the same value as handwritten signatures, signatures with seals and, names with seals (with a few exceptions). These signatures are certified by a government approved certification authority. Typically, in the certification process, a private key is used to create the signature which is only attributable to the signatory and the private key must be managed and controlled by the signatory when the signature is created. Digital signatures that are not certified are allowed and generally have the same effect as a signature if agreed between all involved parties (Article 3).
Effective December 10, 2020, the amended Digital Signature Act seeks to provide individuals with more options in terms of private certificate providers, signature techniques and electronic signature services. This amended Act ceased to acknowledge the legal assumption that exclusively applied to certified electronic signatures. The Ministry of Science and Information Communication Technology is expected to prepare related measures and guidance in the future.
Is an electronic signature valid in South Korea?
Yes. Electronic signatures are permitted in South Korea. Certified digital signatures and digital signatures that are not certified are allowed in the context of employment, and can be used for employment contracts, privacy notices, employee onboarding, etc. Any disputes as to the validity of signatures (electronic or physical) will come down to a question of proof.
HR Best Practices: Electronic signatures are generally considered valid in the employment context in South Korea. While there are no detailed requirements as to what constitutes a valid digital signature that isn’t certified, employers should follow general best practices (recording metadata, verifying individual(s) signing, preventing alterations after signature, etc.).