Legal Framework for Electronic Archiving
Although some countries require certain types of documents to be kept and archived in their original paper form, for most categories of documents, including HR-related records, there is no such requirement, and it is generally acceptable to use electronic versions of paper records (i.e., scanned copies of paper originals) during most government agencies’ inspections and audits or in court proceedings.
The evidential or probative value of electronic versions of paper records may be more easily challenged before a court than it would be for the originals. This is mainly because the original records could be tampered with or changed before being scanned, and, unless proper technology has been used (e.g., encryption and timestamping), it may not be easy to detect such changes from a scanned copy. In specific situations, it may be good practice for employers to retain archives of paper originals in the event such originals would be requested by a specific investigator, auditor, judge or authority.
Are electronic scanned copies of paper originals legally valid?
In China, an electronic scanned copy of a paper original is legally valid and can be used as documentary evidence in court (Civil Procedure of Law of the People’s Republic of China). That said, the probationary value is much lower than the original paper record. An electronically scanned copy cannot be the sole evidence to determine the facts in a court case unless it can be examined against the original record (Evidence Rule of Supreme Court, Art. 69).
In practice, when an electronic scanned copy is provided, unless the counter party admits to the authenticity of this scanned copy, courts will require that the party submitting the record provide other evidence to prove the authenticity and reliability of the scanned copy (usually examined against the original). Otherwise the scanned record will not be able to serve as sole evidence in the courts. Employers in China generally have the burden of proving facts in court cases as they are the primary holder of employment records. Therefore, if the original record cannot be produced, there is an increased risk of losing a case where an electronic copy that has not been verified against the original is used as the sole evidence.
Note that a scanned copy which is certified and notarized by a notary public as an authentic and true copy has the same legal effect as the original document. However, due to the cost of notarization in China, this is not a common practice. At this time, it makes sense to retain paper originals in addition to electronically scanned copies. As a best practice, some employers in China keep paper originals for a minimum of two years after the employee leaves the company.
Are there any legal requirements for electronic archiving systems (EAS)?
Regarding electronic archiving systems requirements, PRC law does not have any specific legal requirements. However, to strengthen the probative value of an electronic scanned copy, the following factors should be taken into account:
- The reliability of the manner in which the electronic scanned copy was generated, stored and transmitted. Electronic records should be stored in an un-erasable electronic medium and have a backup copy kept separately in a different location. In addition, specific employees should be designated for the collection, filing, archiving, use, storage and destruction of records.
- The reliability of the manner in which the integrity of the information is maintained. The technical environment and database of electronic records should be maintained on a periodic basis to ensure long-term and effective use of such records.
HR Best Practices: The full electronic archiving era is approaching, but for now it is not possible to guarantee that all paper documents can be destroyed. For Chinese employers, it’s good practice to keep the paper original in addition to the electronic copy in case the record is questioned in court.