전자문서 및 전자거래 기본법의 재평가

Abstract

When the UNCITRAL Model Law on Electronic Commerce was adopted in the mid 1990s, it was a point of contention whether contracts concluded through electronic means are ‘valid’. It was therefore necessary to remove such a doubt by legislative means. Now, there is no doubt that contracts can validly be concluded through electronic means. On the other hand, where a statute requires a contract or a notice to be in writing, whether electronic communications can satisfy such a ‘writing’ requirement is a highly contentious issue requiring cautious approaches because electronic communications do not necessarily have similar functions as paper and because the parties’ interests are sharply vetted against each other. The Electronic Documents and Electronic Commerce Act (EDECA) of Korea confusingly refers to the information in electronic form as “electronic document”. The EDECA thus stipulates that an “electronic document” shall not be denied the “validity as a document” soley because it is in electronic form. This provision is due to a confusion between the ‘validity’ of contracts concluded through electronic means and the ‘validity as a document’. A ‘valid’ contract does not mean that it has the ‘validity as a document’. Regarding the time of dispatch, the EDECA has an erroneous provision which stipulates that the message shall be deemed to be dispatched when it enters the information system accessible by the recipient. The EDECA also made a mistake when it excerpted the Model Law provision regarding the acknowledgement of receipt. These errors need to be rectified. Regarding the electronic signature, Model Law or the UN Convention on the Use of Electronic Communications in International Contracts take the position where a widest possible range of signing methods are recognized as ‘valid’ and these methods are treated as satisfying the signature requirement under the law. The South Korean law takes the oppisite position. Only the “government endorsed digital signature” under the Electronic Signature Act of Korea shall be treated as satisfying the signature requirement under the law. In order to produce “government endorsed digital signature”, one must have a “government endorsed” digital certificate issued by a “government endorsed” certificate service provider. The signature requirement under the Korean law can therefore be met only through a very restrictive, exclusive and closed regime of electronic signature. The “government endorsed” regime of services is stipulated in EDECA in respect of services for retention and exchange of electronic records, as well as the “government endorsed” electronic address. Such heavy involvement of the government is inimical to the “principle of private initiative” the EDECA professes as its policy principle.