Legal Update: Is an e-mail a writing for the purpose of meeting a contractual written notice requirement?

While Korea was one of the early countries to legislate regulations on electronic commerce and electronic documents in the year 2002, it has recently amended the Framework Act on Electronic Documents and Transactions (the “Act”) in order to, among other things, clarify (i) legal effect of electronic documents and (ii) conditions for electronic documents to be legally deemed as a “writing.” An electronic document is broadly defined in the Act as “information generated/converted and then sent/received or stored in electronic form by data processing system.” The amendment as summarized below will take effect on December 10, 2020.

Legal Effect of Electronic Documents

The phrase “unless otherwise provided in other laws” has been taken out from Article 4(1) of the Act which now reads: “An electronic document shall not be denied legal effect solely on the ground that it is in electronic form.” Also, Article 4(3) of the Act, under which electronic documents can be legally used in lieu of “paper” documents only in the listed 61 cases, has been removed in its entirety.

Electronic Documents Deemed as Writing

In place of Article 4(3), the Act has now a new provision under Article 4-2 which provides two conditions for an electronic document to be deemed as a writing. The two conditions are as follows: (i) the terms of such electronic document shall be readable (on a screen or otherwise), and (ii) such electronic document shall be retainable in its original or retrievable form. These are minimum conditions to satisfy the policy objectives of the “writing” requirement. Certain electronic documents, however, shall still not be deemed as a writing in the cases where any exception is provided under other laws or an electronic form is not permitted in its nature.

Takeaway

In Korea electronic documents are expected to be used more widely in lieu of “paper” documents. When a writing is required, under a contract or statute, for a record, notice, contract, or other instance (as an example posed in the title of this article), an electronic document will be made available as being legally valid as a paper document, provided that such electronic document is both readable and retainable in accordance with the Act.

* At HwaHyun we will be glad to review or prepare your compliance policy and guidelines with respect to use of electronic documents in Korea both within your organization and toward various customers and interested parties.