USING ELECTRONIC EVIDENCE IN CHINA
Mar. to Jun. 2015 China Bulletin

Electronic signatures that meet certain conditions have been valid in China since the PRC Electronic Signature Law came into effect in 2005, and other electronic data is recognized as admissible in court.  However, Chinese courts have proven reluctant to admit electronic data in practice because it can be easily altered and its authenticity is typically open to challenge.  In an interpretation issued January 30, 2015, the Supreme People’s Court (SPC) for the first time systematically set out a legal definition of “electronic data” that recognizes it as a category of evidence.  The Judicial Interpretation on the Application of the PRC Civil Procedure Law includes emails, short messages, electronic signatures, and other data formed or stored on electronic media.

Although this SPC interpretation is helpful, Chinese courts are likely to continue to view electronic data with suspicion, especially printouts of emails submitted as evidence.  It is advisable to obtain a signed hardcopy (or an original  company chop on documents such as statements of account) if a document could be needed as evidence in a future dispute with a counterparty, e.g., to a purchase, employment or settlement agreement.  For greater reliability, the signed hardcopy should be notarized (see below).

Notarization involves added time and cost.  If it is not possible for strategic reasons, an original signature can still usually be obtained.  Even an un-notarized, signed hardcopy is much more likely to be accepted as reliable evidence than, for example, a printout of an email.  If there is no option but to rely on an email, it should be clearly and expressly acknowledged as to content, date and parties by the counterparty.

Testimony is often key proof offered in the U.S. to support the authenticity of electronic data.  In China, although written evidence is given substantial weight, testimony, especially by interested parties or their representatives, is often considered  unreliable.  The SPC interpretation includes provisions regarding testimony, such as detailed rules on expert witnesses and a requirement that all witnesses sign a guarantee to the court before providing testimony.  If you plan to submit electronic data still on a computer of other medium, a qualified notary should be retained to observe and notarize taking possession of the medium, making a copy of the hard drive or other element holding the data, and sealing of the medium.

Notarization is used in China to prove the authenticity of evidence.  Facts and documents that are notarized according to legal requirements are admissible in court as reliable evidence of the same, and are considered persuasive unless contrary evidence is introduced that is sufficient to overcome them.  Notarized written evidence is usually give more weight than other types of evidence, including un-notarized written evidence and testimony.

Questions?  Please contact Allan Marson at china.desk@ishimarulaw.com or +1 408-738-0592 #719 for a complimentary consultation on documenting transactions in China.