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.
The Supreme People’s Court issued the Decision on the Amendment of the Several Provisions on Evidence in Civil Proceedings on December 25, 2019 (“Decision”), Article 93, which stipulates the standard to determine the probative value of electronic documents and data. Under the Decision, the court considers the following when determining the authenticity of electronic evidence:
If the people’s court deems it necessary, the court may examine and judge the authenticity of the electronic record via means of identification or inquest.
Article 94 of the Decision also provides five circumstances in which the court can confirm the authenticity of electronic data evidence:
Article 94 also stipulates that "if the contents of electronic data are notarized by a notary public, the people's court shall confirm its authenticity, except where there is sufficient evidence to prove the opposite."
Under the Electronic Signature Law (Art. 8) natively electronic records must meet the following standards in order to be considered as originals:
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:
HR Best Practices: Native electronic documents may be admitted by a court as long as they meet the requirements above. Companies should take appropriate measures to ensure that proper procedures for generating, processing, storing and transferring the electronic documents have been followed.