The signature requirements pertain the legal or contractual requirements in order to make a legally effective declaration of intent or a legally binding contract.
Possibility to replace a specific formal requirement of making a binding declaration of intention
According to the PRC laws, where the parties conclude a contract in written form, the contract is established when both parties have signed it, affixed their seals thereon or have affixed their fingerprints thereon.
In replacement of the written form, a contract can be established when one (1) party has performed its principal obligation before signing, sealing, or affixing its fingerprint and the other party has accepted it. If a contract has to be concluded in written form as required by laws or as agreed by the parties, if the parties fail to conclude the contract in written form, the contract can also be established when one (1) party has performed its principal obligation and the other party has accepted it.
Presence of any specific formal requirements to effectively conclude a loan agreement
Yes. The PRC laws require that a loan agreement shall be made in written form, except when the loan is granted between natural persons who have agreed otherwise.
Process of conclusion of a contract by using a qualified electronic signature in practice
According to the PRC laws, for contracts or other documents and instruments in civil activities, the parties involved may agree to use electronic signature. If the parties agree to use electronic signature, an electronic signature shall be deemed as “reliable electronic signature” if it satisfies all the following criteria: (i) when the electronic signature creation data is used for electronic signature, it is exclusively proprietary to the electronic signatory; (ii) the electronic signature creation data is exclusively controlled by the electronic signatory at the time of signing; (iii) any subsequent alteration to the electronic signature after the signature can be detectable; and (iv) any subsequent alteration to the content and form of the data message after the signature can be detectable. The parties may also choose an electronic signature which complies with their agreement on reliability requirements.
There are many vendors ranging from e-signature service providers to e-contracting platform business. All service providers need a corporation registration in accordance with the requirements of market regulatory bodies in order to operate relevant business. In addition, no particular license is necessary except for business relating to any Internet finance contained in the services.
Legal consequences to a contract in case of not fulfilling formal requirements
Different legal consequences to the contracts are given in the PRC laws, including null and void, revokable, to be valid by acknowledgement, in the case that formal requirements are not fulfilled, depending on how it was not fulfilled.
In the end, the formal requirements will rely on the substantive ‘expression of intent’ of the parties in the event of disputes. For instance, if the parties fail to conclude the contract in written form, but one (1) party has performed its principal obligation and the other party has accepted it, the contract is established. And in the case of a substantial misunderstanding, the person performing such act has the right to request a people's court or an arbitral institution to revoke such act.
Usual practice of signing contractual agreements in the B2B sector
Methods could be categorised in two (2) formats for B2B sectors, traditional signing, and electronic approaches. Electronic approaches include electronic signatures, electronic seals, electronic contracting systems, and conclusion of contracts by the way of email confirmation etc.
Usual practice of signing contractual agreements in the B2C sector
Methods could also be categorised in two (2) formats for B2C sectors, traditional signing, and electronic approaches. Electronic approaches include electronic signatures, electronic contracting systems, and conclusion of contracts by the way of email confirmation etc. Along with the boost of e-commerce in China, most contracts concerning e-commerce are signed via online platforms. Some contracts involving offline service providers and customers might still be concluded with a handwritten signature.