How do businesses pay for digital signature services?

In response to the petition of enterprises providing digital signature certification services (CA enterprises) about some unreasonable things in Circular 305/2016/TT-BTC regulating the collection level, collection, payment, management and use of service fees for maintaining the digital certificate status checking system, the Ministry of Finance has responded to this issue.

Digital signatures are widely applied to businesses. Illustration photo

On the basis for promulgating Circular 305/2016/TT-BTC

The List of fees issued with the Law on Fees and Charges includes the name of Service fee for maintaining the digital certificate status checking system (Point 7, Section VI) and assigns the authority to the Ministry of Finance to specify details.

Point a, Clause 3, Article 6 of Decree No. 120/2016/ND-CP dated August 23, 2016 of the Government detailing and guiding the implementation of a number of articles of the Law on Fees and Charges stipulates that Ministries and branches are responsible for: "Receiving requests from fee and charge collection organizations under their management; appraising and issuing a document requesting the Ministry of Finance to issue documents regulating fee and charge collection".

Based on the above provisions, on June 30, 2016, the Ministry of Information and Communications issued Official Dispatch No. 2192/BTTTT-KHTC (attached with the Project) to the Ministry of Finance requesting the issuance of a Circular regulating the service fee for maintaining the digital certificate status checking system, in which it is proposed that the fee payers are organizations licensed to provide public digital signature certification services.

In Clause 3, Article 38 of Decree No. 26/2007/ND-CP dated February 15, 2007 of the Government detailing the Law on Electronic Transactions on digital signatures and digital signature certification services, it is stipulated that organizations providing public digital signature certification services are obliged to: "Pay fees and licensing fees as prescribed".

Based on the above provisions, Circular 305/2016/TT-BTC dated November 15, 2016 of the Ministry of Finance stipulating that CA enterprises are the ones paying service fees for maintaining the digital certificate status checking system has a legal basis, within the authority prescribed in Point 7, Section VI of the List of fees issued with the Law on Fees and Charges, in accordance with Clause 1, Article 3 of the Law on Fees and Charges and Clause 3, Article 38 of Decree No. 26/2007/ND-CP.

CA business customers do not have to pay fees

Clause 1, Article 4 of Decree No. 26/2007/ND-CP stipulates that the activities of organizations providing public digital signature certification services are activities for business purposes.

In fact, CA enterprises are providing digital signature certification services for agencies, organizations, and individuals to use, collecting fees according to the service price mechanism. Accordingly, customers of CA enterprises are paying CA enterprises the price of digital signature certification services.

Clause 3, Article 4 of Decree No. 26/2007/ND-CP stipulates that the national digital signature certification service provider (Root Certification Authority) is an organization that provides digital signature certification services to organizations providing public digital signature services.

Pursuant to Clause 3, Article 38 of this Decree, organizations providing public digital signature certification services are obliged to "Pay licensing fees and charges as prescribed".

Article 57 of Decree No. 26/2007/ND-CP stipulates, "... the national digital signature certification service provider acts as a public digital signature certification service provider, and the public digital signature certification service providers act as subscribers."

Based on the above provisions, Circular No. 305/2016/TT-BTC stipulating that CA enterprises are fee payers has a legal basis, in accordance with the provisions of Decree No. 26/2007/ND-CP.

In addition, Decree No. 26/2007/ND-CP does not stipulate that customers of CA enterprises are obliged to pay fees, but only stipulates that organizations providing public digital signature certification services are obliged to "Pay fees and licensing fees according to regulations", so the Project of the Ministry of Information and Communications does not propose to collect fees from entities other than CA enterprises.

If the regulation that customers of the CA enterprise must also pay the fee is a duplicate collection and not in accordance with the provisions of Decree No. 26/2007/ND-CP because the customers of the CA enterprise have already paid for the service to the CA enterprise according to the price mechanism, if this additional fee must be paid, it will be a double collection, not in accordance with the provisions of the Law on Fees and Charges.

How to calculate service fees

The List of fees issued with the Law on Fees and Charges includes the name of Service fee for maintaining the digital certificate status checking system (Point 7, Section VI) and assigns the authority to the Ministry of Finance to specify details.

Clause 1, Article 3 of Decree No. 26/2007/ND-CP stipulates that "Digital certificate" is a form of electronic certificate issued by an organization providing digital signature certification services. A digital certificate includes 9 contents, including the digital signature of the organization providing digital signature certification services as prescribed in Clause 6, Article 10 of Decree No. 26/2007/ND-CP, which is the most important content of a digital certificate.

Thus, on each digital certificate that a CA enterprise issues to a customer, the digital signature of the CA enterprise is a mandatory condition.

Illustration photo (internet source)

According to the provisions of Article 57 of Decree No. 26/2007/ND-CP and the Fee Collection Project of the Ministry of Information and Communications, CA enterprises are customers of the National Electronic Certification Center. The use of the service of maintaining the digital certificate status checking system of CA enterprises provided by the National Electronic Certification Center is specifically as follows:

A CA enterprise is a business unit providing digital signature certification services. Each time a CA enterprise issues (sells) a digital certificate to a subscriber, the CA enterprise must digitally sign the digital certificate sold to the subscriber.

To ensure legal validity, the digital signature of the CA enterprise must be created during the validity period of the corresponding digital certificate and verified by the public key recorded on the corresponding valid digital certificate.

Therefore, checking the status of digital certificates of CA enterprises is essentially to authenticate the digital signatures of CA enterprises on the digital certificates that CA enterprises issue to customers, which are being stored on the technical system maintained by the National Electronic Authentication Center (automatically performed by digital signature application software).

Therefore, the fee regulation in Circular No. 305/2016/TT-BTC for digital signatures of CA enterprises is appropriate in terms of technical operation and maintenance of the digital certificate status checking system managed and operated by the Ministry of Information and Communications, in accordance with the provisions of the Law on Electronic Transactions and Decree No. 26/2007/ND-CP.

On April 10, 2017, the Ministry of Finance issued Official Dispatch No. 4691/BTC-CST in response to CA enterprises, stating: "According to the provisions of Clause 6, Article 10 of Decree No. 26/2007/ND-CP, each digital certificate issued to customers (subscribers) has the digital signature of the CA enterprise.

CA enterprises issue digital certificates to customers and collect fees according to the contract, while CA enterprises use the service of maintaining the digital certificate status checking system provided by the National Electronic Authentication Center. Therefore, CA enterprises pay fees for digital signatures on customers' digital certificates. The fee calculation is determined to be 3,000 VND/digital signature/month according to the provisions of Circular No. 305/2016/TT-BTC, which is in accordance with the provisions of the Law on Fees and Charges and the Law on Electronic Transactions.

This calculation is equivalent to calculating the number of digital certificates that each CA business has issued to customers that are still valid, each digital certificate is 3,000 VND/month.

Accordingly, the fee of 3,000 VND/digital signature/month is calculated based on the digital signature of the CA enterprise signing the certificate for the customer.

Pay fees from the third quarter of 2017

Clause 1, Article 151 of the Law on Promulgation of Legal Documents stipulates the effective date of legal documents as follows:

"The effective date of all or part of a legal document is specified in that document but not earlier than 45 days from the date of approval or signing for promulgation of legal documents of central State agencies;...".

Circular 305/2016/TT-BTC was issued on November 15, 2016 and took effect from January 1, 2017 (ensuring the correct time from the date of signing and promulgation and the effective date of the document is not earlier than 45 days from the date of signing) and charges for the service of maintaining the digital certificate status checking system from January 1, 2017 provided by the National Electronic Authentication Center.

Decree No. 26/2007/ND-CP of the Government was issued in 2007 and took effect from March 14, 2007. Clause 3, Article 38 of this Decree stipulates that CA enterprises must pay fees according to regulations.

Circular 305/2016/TT-BTC was issued pursuant to Decree No. 26/2007/ND-CP, Law on Fees and Charges (effective from January 1, 2017). Circular 305/2016/TT-BTC was issued on November 15, 2017 and effective from January 1, 2017, without retroactive effect or heavier legal liability.

For digital certificates issued by CA enterprises to customers before January 1, 2017, Circular No. 305/2016/TT-BTC stipulates that fees must be paid from the third quarter of 2017 in order to facilitate CA enterprises. Therefore, CA enterprises must comply with the provisions of the Law on Fees and Charges and guiding documents.

In case of difficulties in business operations, CA enterprises are requested to provide additional information and data so that the Ministry of Finance can coordinate with the Ministry of Information and Communications to study appropriate solutions, creating favorable conditions for enterprises while ensuring compliance with legal regulations.

According to Chinhphu.vn