1. 信息和计算机技术开发了以电子形式将信息与特定的人或实体联结在一起的各种手段，目的是确保这类信息的完整性，或者使人们得以表明，其有资格或得到授权，利用信息服务或访问储存的信息。
Information and computer technology have developed various means for linking information in electronic form to particular persons or entities, for ensuring the integrity of such information or for enabling persons to demonstrate their entitlement or authorization to obtain access to a certain service or repository of information.
这些功能有时通称电子“认证”或电子“签名”方法。
These functions are sometimes referred to generically either as electronic “authentication” or electronic “signature” methods.
但有时又对电子“认证”和电子“签名”加以区分。
Sometimes, however, distinctions are made between electronic “authentication” and electronic “signature”.
术语的使用不仅前后不一，而且在某种程度上令人误导。
The use of terminology is not only inconsistent, but to some extent misleading.
在纸质环境中，“认证”和“签名”这两个词及其相关行动在不同的法律体系中有着不尽相同的涵义，其实际功能与所谓电子“认证”和“签名”方法的用途和功能未必一致。
In a paper-based environment, the words “authentication” and “signature” and the related actions of “authenticating” and “signing” do not have exactly the same connotation in different legal systems and have functionalities that may not necessarily correspond to the purpose and function of the so-called electronic “authentication” and “signature” methods.
此外，“认证”一词有时泛用于对信息的来源和完整性所作的任何保证，但某些法律体系可能会对这些要素加以区分。
Furthermore, the word “authentication” is sometimes generically used in connection with any assurance of both authorship and integrity of information, but some legal systems may distinguish between those elements.
因此，为确定本文件的范围,有必要概要介绍在术语和法律理解上的区别。
A short overview of differences in terminology and legal understanding is therefore necessary with a view to establishing the scope of the present document.
这将包括墓碑和房屋的照片3、帐簿4、图画和计划5等。
Under common law on civil evidence, a record or document is regarded as “authentic” if there is evidence that the document or record “is what its proponent claims”.1 The notion of “document” as such is fairly broad and generally encompasses “anything in which information of any description is recorded”.2 This would include, for example, such things as photographs of tombstones and houses,3 account books4 and drawings and plans.5 The relevancy of a document as a piece of evidence is established by connecting it with a person, place or thing, a process which in some common law jurisdictions is known as “authentication”.6 Signing a document is a common - albeit not exclusive - means of “authentication”, and, depending on the context, the terms “to sign” and “to authenticate” may be used as synonyms.7
确定文件作为证据的适切程度的方法是，将文件与人、地点或物联结在一起，一些普通法的法域将这一进程称之为“认证”6。
Under common law on civil evidence, a record or document is regarded as “authentic” if there is evidence that the document or record “is what its proponent claims”.1 The notion of “document” as such is fairly broad and generally encompasses “anything in which information of any description is recorded”.2 This would include, for example, such things as photographs of tombstones and houses,3 account books4 and drawings and plans.5 The relevancy of a document as a piece of evidence is established by connecting it with a person, place or thing, a process which in some common law jurisdictions is known as “authentication”.6 Signing a document is a common - albeit not exclusive - means of “authentication”, and, depending on the context, the terms “to sign” and “to authenticate” may be used as synonyms.7
签署一份文件是“认证”的一种常见——但不是唯一的——手段，并且视具体情况，可将“签署”和“认证”用作同义词7。
Under common law on civil evidence, a record or document is regarded as “authentic” if there is evidence that the document or record “is what its proponent claims”.1 The notion of “document” as such is fairly broad and generally encompasses “anything in which information of any description is recorded”.2 This would include, for example, such things as photographs of tombstones and houses,3 account books4 and drawings and plans.5 The relevancy of a document as a piece of evidence is established by connecting it with a person, place or thing, a process which in some common law jurisdictions is known as “authentication”.6 Signing a document is a common - albeit not exclusive - means of “authentication”, and, depending on the context, the terms “to sign” and “to authenticate” may be used as synonyms.7
3. “签名”又是“一方当事人所使用的以构成其签名为目的的任何名称或符号”8。
A “signature”, in turn, is “any name or symbol used by a party with the intention of constituting it his signature”.8 It is understood that the purpose of statutes that require a particular document to be signed by a particular person is to confirm the genuineness of the document.9 The paradigm case of signature is the signatory's name, written in the signatory's own hand, on a paper document (a “handwritten” or “manuscript” signature).10 However, the handwritten signature is not the only conceivable type of signature.
法规要求特定文件由特定人签名的目的是确认文件的真实性9。
A “signature”, in turn, is “any name or symbol used by a party with the intention of constituting it his signature”.8 It is understood that the purpose of statutes that require a particular document to be signed by a particular person is to confirm the genuineness of the document.9 The paradigm case of signature is the signatory's name, written in the signatory's own hand, on a paper document (a “handwritten” or “manuscript” signature).10 However, the handwritten signature is not the only conceivable type of signature.
签名的范式为，签名人姓名由签名人亲手写在纸质文件上(“手写的”或“印刷体书写的”签名)10。
A “signature”, in turn, is “any name or symbol used by a party with the intention of constituting it his signature”.8 It is understood that the purpose of statutes that require a particular document to be signed by a particular person is to confirm the genuineness of the document.9 The paradigm case of signature is the signatory's name, written in the signatory's own hand, on a paper document (a “handwritten” or “manuscript” signature).10 However, the handwritten signature is not the only conceivable type of signature.
但手写签名并不是唯一可以想象的签名类型。
A “signature”, in turn, is “any name or symbol used by a party with the intention of constituting it his signature”.8 It is understood that the purpose of statutes that require a particular document to be signed by a particular person is to confirm the genuineness of the document.9 The paradigm case of signature is the signatory's name, written in the signatory's own hand, on a paper document (a “handwritten” or “manuscript” signature).10 However, the handwritten signature is not the only conceivable type of signature.
由于法院将签名视为“只是一种标志”，除非有关法规要求签名为手迹，否则，“有需要签署文件的当事人的印刷字体的姓名即可”，或签名“可以是刻有签名人普通签名复制品的图章在文件上盖上的印记”，但前提是，对于这些情况，举出证据证明，“图章上印有的姓名是由签名人附上的”，或此种签名“得到承认或被签名人认定得到他的授权，目的是确定特定文书的归属”11。
Since courts regard signatures as “only a mark”, unless the statute in question requires the signature to be an autograph, “the printed name of the party who is required to sign the document is enough”, or the signature “may be impressed upon the document by a stamp engraved with a facsimile of the ordinary signature of the person signing”, provided that proof in these cases is given “that the name printed on the stamp was affixed by the person signing”, or that such signature “has been recognized and brought home to him as having been done by his authority so as to appropriate it to the particular instrument”.11
4. 在英国的《防止欺诈法》12和其他国家的类似法律13中可以找到普通法法域将法定签名要求作为某些行为具备有效性先决条件的典型规定。
Legal signature requirements as a condition for the validity of certain acts in common law jurisdictions are typically found in the British Statute of Frauds12 and its versions in other countries.13 With time, courts have tended to interpret the Statute of Frauds liberally, out of recognition that its strict form requirements were conceived against a particular background14 and that strict adherence to its rules might unnecessarily deprive contracts of legal effect.15 Thus, in the last 150 years, common law jurisdictions have seen an evolution of the concept of “signature” from an original emphasis on form to a focus on function.16 Variations on this theme have been considered by the English courts from time to time, ranging from simple modifications such as crosses17 or initials,18 through pseudonyms19 and identifying phrases,20 to printed names,21 signatures by third parties22 and rubber stamps.23 In all these cases the courts have been able to resolve the question as to whether a valid signature was made by drawing an analogy with a manuscript signature.
随着时间的推移，法院倾向于对《防止欺诈法》作宽泛的解释，因为法院承认，其严格的格式要求是在特定背景下提出的14，严格遵守其规则可能会毫无必要地剥夺合同的法律效力15。
Legal signature requirements as a condition for the validity of certain acts in common law jurisdictions are typically found in the British Statute of Frauds12 and its versions in other countries.13 With time, courts have tended to interpret the Statute of Frauds liberally, out of recognition that its strict form requirements were conceived against a particular background14 and that strict adherence to its rules might unnecessarily deprive contracts of legal effect.15 Thus, in the last 150 years, common law jurisdictions have seen an evolution of the concept of “signature” from an original emphasis on form to a focus on function.16 Variations on this theme have been considered by the English courts from time to time, ranging from simple modifications such as crosses17 or initials,18 through pseudonyms19 and identifying phrases,20 to printed names,21 signatures by third parties22 and rubber stamps.23 In all these cases the courts have been able to resolve the question as to whether a valid signature was made by drawing an analogy with a manuscript signature.
因此，在最近150年内，奉行普通法的法域对“签名”这一概念已从最初强调格式转为重视功能16。
Legal signature requirements as a condition for the validity of certain acts in common law jurisdictions are typically found in the British Statute of Frauds12 and its versions in other countries.13 With time, courts have tended to interpret the Statute of Frauds liberally, out of recognition that its strict form requirements were conceived against a particular background14 and that strict adherence to its rules might unnecessarily deprive contracts of legal effect.15 Thus, in the last 150 years, common law jurisdictions have seen an evolution of the concept of “signature” from an original emphasis on form to a focus on function.16 Variations on this theme have been considered by the English courts from time to time, ranging from simple modifications such as crosses17 or initials,18 through pseudonyms19 and identifying phrases,20 to printed names,21 signatures by third parties22 and rubber stamps.23 In all these cases the courts have been able to resolve the question as to whether a valid signature was made by drawing an analogy with a manuscript signature.
英国的法院不时考虑在这一问题上作出一些变动，其中包括使用交叉符号17、首字母18等简单的修改，使用假名19和表明身份的短语20，用印刷体书写姓名21、由第三方当事人签名22和使用图章23等。
Legal signature requirements as a condition for the validity of certain acts in common law jurisdictions are typically found in the British Statute of Frauds12 and its versions in other countries.13 With time, courts have tended to interpret the Statute of Frauds liberally, out of recognition that its strict form requirements were conceived against a particular background14 and that strict adherence to its rules might unnecessarily deprive contracts of legal effect.15 Thus, in the last 150 years, common law jurisdictions have seen an evolution of the concept of “signature” from an original emphasis on form to a focus on function.16 Variations on this theme have been considered by the English courts from time to time, ranging from simple modifications such as crosses17 or initials,18 through pseudonyms19 and identifying phrases,20 to printed names,21 signatures by third parties22 and rubber stamps.23 In all these cases the courts have been able to resolve the question as to whether a valid signature was made by drawing an analogy with a manuscript signature.
在所有这些情形中，法院都能通过与印刷体签名进行类比而解决签名是否有效的问题。
Legal signature requirements as a condition for the validity of certain acts in common law jurisdictions are typically found in the British Statute of Frauds12 and its versions in other countries.13 With time, courts have tended to interpret the Statute of Frauds liberally, out of recognition that its strict form requirements were conceived against a particular background14 and that strict adherence to its rules might unnecessarily deprive contracts of legal effect.15 Thus, in the last 150 years, common law jurisdictions have seen an evolution of the concept of “signature” from an original emphasis on form to a focus on function.16 Variations on this theme have been considered by the English courts from time to time, ranging from simple modifications such as crosses17 or initials,18 through pseudonyms19 and identifying phrases,20 to printed names,21 signatures by third parties22 and rubber stamps.23 In all these cases the courts have been able to resolve the question as to whether a valid signature was made by drawing an analogy with a manuscript signature.
因此可以说，在存在某种僵硬的一般格式要求的背景下，奉行普通法法域的法院通常对“认证”和“签名”的概念有着宽泛的理解，重点是了解当事人的意图，而不是其作为的形式。
Thus, it could be said that against a background of some rigid general form requirements, courts in common law jurisdictions have tended to develop a broad understanding of what the notions of “authentication” and “signature” mean, focusing on the intention of the parties, rather than on the form of their acts.
5. 奉行大陆法的法域对“认证”和“签名”的做法与普通法所采取的做法不尽相同。
The approach to “authentication” and “signature” in civil law jurisdictions is not in all respects identical to the common law approach.
奉行大陆法的多数法域对于私法事项遵行合同安排格式自由的规则，但在这条规则上或明24或暗地25存在许多例外情况，究竟有多少例外须视有关法域而定。
Most civil law jurisdictions follow the rule of freedom of form for contractual engagements in private law matters, either expressly24 or impliedly25 subject, however, to a more or less extensive catalogue of exceptions depending on the jurisdiction concerned.
这就意味着，作为一条通则，“书面”或“已签名”并非合同有效并且可加以执行的必然条件。
This means that, as a general rule, contracts need not be in “writing” or “signed” in order to be valid and enforceable.