What is the legal value of native electronic documents (that do not require signature by the parties)?
The majority of legislation generally recognizes the validity and probative value of documents that are natively electronic (i.e., created as electronic originals), subject to compliance requirements.
There is no restriction preventing HR teams from distributing and storing records electronically in China. The validity of a natively electronic record is dependent upon the extent the original record can be proven to be authentic and unchanged since the record’s creation.
Native electronic documents may be admitted in court. Under the Electronic Signature Law (Art. 8) natively electronic records must meet the following standards in order to be considered as originals:
- The record’s content must be able to be effectively presented and available for use at any time; and,
- content must remain intact and unchanged since creation.
An electronic record’s authenticity will be assessed based on three main factors, along with other relevant factors. These include the reliability of the measures used to:
- generate, store and transmit data;
- ensure the continued integrity of the record’s content; and,
- identify the method the sender is using.
HR Best Practices: Native electronic documents may be admitted by a court as long as they can be proven to be authentic, integral, reliable and relevant. However, considering the nature of the electronic documents in scope, a company should take appropriate measures to ensure that proper procedures for generating, processing, storing and transferring the electronic documents have been followed.