Sitting in limbo or being the flaming Phoenix: the relevance of the archival discipline to the admissibility of digital evidence in China

ABSTRACT

This article presents a review of the progress made in the digital transition in China, especially in light of the fact that admissibility of digital records in legal proceedings is a critical factor in such transition. It discusses the Chinese legal system and the rules governing the admissibility of both paper and digital records as well as the reasons why evidence collection and preservation by a third party has become a popular approach to guarantee the integrity of the records and improve their chances of admissibility in a court of law. In this context, this article then discusses how the InterPARES Trust PaaST model can help address some of the issues, thus, demonstrating the relevance of archival knowledge to the digital transition.

KEYWORDS:

• PaaST
• digital transition
• digital records
• evidence
• China

Acknowledgements

The authors would like to thank the two anonymous reviewers whose comments greatly helped improve an earlier version of this paper.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. The Chinese original is 电子文件归档与电子档案管理研究领导小组.

2. Huiling Feng, 走向单轨制电子文件管理[‘Towards Single track system of Electronic Records Management’], Archives Science Study, no. 1, 2019, pp. 88–94.

3. The terms electronic and digital are used in this article to refer respectively to the method of transmission of the records (which are carried by an electrical conductor and requires the use of electronic equipment to be intelligible by a person) and to their form (which is represented through discrete, binary values).

4. Feng.

5. Weimei Pan, Guan Jiang, Yajing Ji, and Zhiying Liu, ‘Survey on Needs of Users of Archival Outsourcing Services’, Unpublished report.

6. Feng.

7. Jizong Liu, 企业档案双套制保管的‘囚徒困境’及最佳出路 [‘The prisoners’ dilemma in the use of dual-copy system in enterprise archives management and the best responding strategy’], China Archives, no. 11, 2015, pp. 56–59.

8. Yan Chen,‘双套制’‘双轨制’走向何方[‘What are the future directions for the dual-track system and the dual-copy system?’], 机电兵船档案, no. 2, 2018, pp. 36–38; Shuilong Tao and Lei Tian, 电子档案双套制管理问题研究 [‘On the double-sets management system of electronic archives’], Archives Science Study, no. 4, 2014, pp. 61–64.

9. Huiling Feng, 电子文件与纸质文件管理的共存与互动 [‘The co-existence of and interaction between the management of electronic records and paper records’], China Archives, no. 12, 2003, pp. 40–42; Hongwei Liu,‘双套制’与‘双轨制’对电子文件管理的影响 [‘The influence of “the dual-copy system” and “dual-track system” on electronic records management’], Archives Management, no. 5, 2011 pp. 20–22; Qianqian Yang, 我国文件档案‘双轨制’管理模式转型 – 澳大利亚政府数字转型政策的启示 [‘Transition of dual-track system in records and archives management of China: Enlightenment of Australian government’s digital transition policy’], Archives Science Study, no. 3, 2014, pp. 9–13.

10. Bing Li, 对电子文件‘双套制’归档含义的理解 – 同一份文件的两种版本与两个部分 [‘An interpretation of the dual-copy system – One record’s two versions or two parts’], China Archives, no. 9, 2011, pp. 32–33.

11. Feng, ‘The co-existence of and interaction’; Tao and Tian.

12. For instance, in the Specification on Electronic Documents Archiving and Electronic Records Management (GB/T 18894–2002), it was required that, if textual and graphical digital records identified as having long-term preservation value have no paper copies, a paper or microfilm copy has to be generated, and both have to be kept (Article 4.5). In Measures on Filing and Transferring of Records at State-Owned Enterprises, issued in 2004, it was stipulated that, for digital records identified as having permanent or long-term preservation value, a paper copy had to be generated and transferred (Article 21). And, in Interim Measures for the Administration of Electronic Documents, issued in 2009, it was required that for digital records identified as having permanent preservation value or other important value, a paper or microfilm copy has to be generated and transferred (Article 16).

13. Li; Jian Zhang, 电子文件双套制存在的风险 [‘Risks with the use of dual-copy system for electronic records management’], Beijing Archives, no. 3, 2009, pp. 25–26.

14. Feng, ‘The co-existence of and interaction’; Tao and Tian.

15. Rong Pan, 对档案‘双套制’管理的思考 [‘An analysis of the dual-copy system for archives management’], Archives World, no. 4, 2003, pp. 20–21; Jian Peng, 关于档案‘双套制’管理问题的探讨 [‘Exploration of the dual-copy system for archives management’]. Archives Science Study, no. 1, 2002, pp. 38–40; Jian Wang, 电子时代‘双套制’归档的新内涵 [‘An updated interpretation of the dual-copy system in the digital era’], China Archives, no. 12, 2004, pp. 48–49.

16. Chen; Junhua Su and Fang Liu, 被异化的谨慎 – – 对‘双套制’管理的问题分析及策略选择[‘Alienated caution – An analysis of the issues with the double-copy system and copying strategies’], Archives Science Bulletin, no. 4, 2015, pp. 100–104; Tao and Tian; Feng, ‘The co-existence of and interaction’.

17. For instance, when the second edition of the Specification on Electronic Documents Archiving and Electronic Records Management (GB/T 18894–2016) was issued, the dual-copy requirement was removed. And when the revised version of Interim Measures on the Filing and Transferring of Electronic Records (2018 Revision) was published, it was instead required that electronic records satisfying the state’s requirements could be ‘filed and transferred’ only in digital format (Article 7). Further, the Outline of the 13th Five-year Plan for the Development of Archival Undertaking in China (2016–2020) recommends pilot testing the one-track system (i.e., the exclusive use of electronic records in the conduct of business) and the one-copy system (i.e., digital records will be kept and preserved only in digital format with no extra paper or microfilm copies generated) in organisations that are suitable.

18. Yi Qian, 电子文件‘单套制’管理相关概念的辨析与思考 [‘An analysis of concepts related to the one-copy system of electronic records management’], Archives Science Bulletin, no. 4, 2017, pp. 8–13; Xinyu Shen, 电子档案‘单套制’背后的电子文件管理思想转变 [‘The change of the conceptual foundation accompanying the adoption of the one-copy system for digital archives’], Archives Management, no. 6, 2017, pp. 33–36; Xilin Shen, 电子文件单套制管理的影响因素 [‘Influencing Factors of Electronic Records Management: Research Based on Expert Survey’], Master thesis, Zhejiang University, 2018; Dadong Sun and Lina Yuan, 基于SWOT分析法的电子档案‘单套制’管理研究 [‘Research on “Single Set” management of electronic records based on SWOT analysis’], Archives & Construction, no. 2, 2018, pp. 9–12.

19. For instance, in her article endorsing and advocating one-track system, Feng argues that the ‘three pillars’ essential for electronic records management are the legal foundation for the evidentiary capacity of electronic records, policies, and management and technologies (Feng, ‘Towards Single track system’) . And, in an empirical research conducted by Shen that uses an expert survey method to investigate the weight of 24 factors, which may influence the adoption of the one-copy system, the legal admissibility of digital records was given the highest weight (Shen, ‘Influencing Factors of Electronic Records’).

20. For instance, the Contract Law of the People’s Republic of China, issued in 1999, recognised the effectiveness of contract in electronic form and the Electronic Signature Law of the People’s Republic of China, issued in 2005, recognised the effectiveness of data messages in electronic form in the conduct of business activity. More recently, Several Provisions of the State Council on Online Government Services issued in 2019, states that ‘The electronic archives that meet the archives administration requirements shall have the same legal force as paper archives’ (Article 12).

21. For instance, taking the admissibility of email as an example, legal rulings show that the courts are inconsistent as to whether the authenticity of an email’s screenshot can be determined without looking at the electronic version in the email client. In Qianhai Shuliang Technology Co. LTD versus Beijing Hengli Jiaye Technology Co. Ltd on disputes over advertisement contract (Case no.: (2019)-Yue-03-Min-Zhong-29168), in the first trial, Beijing Hengli Jiaye Technology Co. Ltd (the plaintiff) submitted a screenshot of the promotion it did for Qianhai’s products on VIVO promotion platform. In the second trial, Qianhai appealed stating that Beijing Hengli did not submit the original of the email in the screenshot; thus, it is incorrect for a court to determine authenticity simply based on a screenshot. In the second trial, the court stated that, ‘The business between the two parties is carried out via email. In the first trial, Shuliang stated that its staff had resigned and therefore could not provide relevant evidence. Under such circumstance, it is not inappropriate that the court accept the evidence submitted by Beijing Hengli’. Yet, in Wanwan versus Shanghai Yanglai Medical Equipment Co.LTD and Beijing Baojiali Sales Consultant Co.Ltd on disputes over execution, the court stated, ‘as for the emails, picture of Beijing Baojiali cash capital increase plan in 2014, and Wechat chat history submitted by Wanwan, because Wanwan did not submit the originals of the evidence, the court did not recognize the authenticity of the evidence.’ These two cases show conflicting attitudes towards the form in which electronic evidence is submitted.

22. Luciana Duranti, ‘The Odyssey of Records Managers’, Records Management Quarterly, vol. 23, no. 3, 1989, pp. 3–6, 8–11.

23. Luciana Duranti, Corinne Rogers, and Anthony Sheppard, ‘Electronic records and the law of evidence in Canada: The uniform electronic evidence act twelve years later’, Archivaria, no. 70, 2010, pp. 95–124; Anthony Sheppard and Luciana Duranti, ‘The Canadian legal framework for evidence and the digital economy: A disjunction?’, 2010, available at <http://ciscra.org/docs/Sheppard_Duranti_The_Canadian_Legal_Framework_FINAL_REPORT.pdf>, accessed 10 July 2020.

24. Heather MacNeil, ‘Trusting Records: the evolution of legal, historical, and diplomatic methods of assessing the trustworthiness of records from antiquity to the digital age’, 1998, available at <https://open.library.ubc.ca/cIRcle/collections/ubctheses/831/items/1.0076929>, accessed 14 April 2020.

25. To learn more about the project, please visit <http://www.lawofevidence.org/lede/home>.

26. Anthony Sheppard, Luciana Duranti, Barbara Endicott-Popovsky, Corinne Rogers, Aaron Alva, and Jessica Bushey, ‘Law of Evidence in the Digital Environment (LEDE) User Survey Report’, 2015, p. 7, available at <https://interparestrust.org/assets/public/dissemination/LEDE-20150128_UserSurvey_FinalReport.pdf>, accessed 23 August 2020.

27. Donald C Force, ‘Pursuing the “Usual and Ordinary Course of Business”: An exploratory study of the role of recordkeeping standards in the use of records as evidence in Canada’, 2013, p. 18, available at <https://open.library.ubc.ca/cIRcle/collections/ubctheses/24/items/1.0166840>, accessed 14 April 2020.

28. In this paper, these are identified as the three (major) procedural laws: the Criminal Procedure Law of the People’s Republic of China (2018 revision) (中华人民共和国刑事诉讼法 (2018修正), the Civil Procedure Law of the People’s Republic of China (2017 Revision) (中华人民共和国民事诉讼法 (2017修正)), and the Administrative Litigation Law of the People’s Republic of China (2017 Revision) (中华人民共和国行政诉讼法 (2017修正).

29. See, for instance, Qifan Cui, 论民事诉讼中档案证据的运用[‘On the use of electronic records as evidence in civil litigations’], Zhejiang Archives, no. 10, 2016, pp. 14–17. Qiuhui Xiao and Binbin Duan, 我国电子文件证据地位及效力立法研究 [‘A research on the legislation of evidence status and effect of electronic records in China’], Documentation, Information & Knowledge, no. 1, 2018, pp. 58–65.

30. See, for instance, Xuemei Cai, 电子档案凭证作用生效分析[‘Analysis on factors guaranteeing the evidentiary capacity of electronic records’], China Archives, no. 2, 2015, pp. 61–63; Kan Li, 证据法语境下电子文件的凭证性保障探析 [‘On the protection of the evidentiary capacity of electronic records in the context of evidence law’], 机电兵船档案, no. 2, 2017, pp. 61–64; Xiuli Zhang, 基于电子证据认证视角的电子文件管理 [‘Management of electronic records from the perspective of examination of electronic evidence’], China Archives, no. 8, 2010, pp. 32–34; and Xiudong Zhu and Ning Zhang, 基于证据视角的社交媒体档案管理 – 以微信为例 [‘Social Media Records Management based on Evidence – Taking WeChat as an Example’], Archives Science Study, no. 2, 2017, pp. 63–67.

31. Xiao and Duan; Shaoxia Wang, 电子文件产生证据效力的困难及其对管理的启示 [‘Difficulties encountered in the realisation of the evidentiary capacity of electronic records and their implications for electronic records management’], Archives Science Study, no. 3, 2003, pp. 54–58.

32. Cui; Xiao and Duan.

33. Li Xie and Guanyan Fan, 电子文件与电子证据领域中的真实性概念分析 [An analysis of the concept of authenticity in the fields of electronic records and electronic evidence], Zhejiang Dangan, no. 1, 2019, pp. 13–17.

34. Ran Wang, 电子文件管理与证据法规则的契合研究[‘Study on the alignment between electronic records management and the rules of evidence law’], Archives Science Bulletin, no. 5, 2018, pp. 51–56.

35. Zhiwen Huang, 电子文件的法律证据价值初探 [‘A preliminary examination of the evidentiary capacity of electronic records’], Archives Science Bulletin, no. 2, 2000, p. 26.

36. Wang, ‘Study on the alignment’.

37. A few exceptions are Lingling Ding, 电子文件法律效力的实现问题 [‘On the realisation of the evidentiary capacity of electronic records’], Yunnan Archives, no. 2, 2011, pp. 58–59; Huang; Zhang, ‘Management of electronic records’; Liang Yu and Chi Zhang, 档案证据在民事诉讼中的运用规则 [‘Rules on the use of archives as evidence in civil litigations’], Beijing Archives, no. 3, pp. 22–23; Wang, ‘Difficulties encountered in the realisation’; and Zhu and Zhang. However, instead of the best evidence rule, the authentication rule, and the exception to hearsay rule, the rules they examined are relevance, legality, and authenticity.

38. Wang, ‘Study on the alignment’.

39. Nanning Zhang and Douglas Walton, ‘Recent Trends in Evidence Law in China and the New Evidence Scholarship’, Law, Probability and Risk, vol. 9, no. 2, 2010, pp. 103–129.

40. Stefan Vogenauer, ‘Inquisitorial System’, in Peter Cane, Joanne Conaghan and David M Walker (eds), The New Oxford Companion to Law, Oxford University Press, Oxford, 2008, n.p.

41. Zhang and Walton, p. 112.

42. Shujie Qi and Shengrong Zhong, 论民事审判方式改革对我国证据制度的影响 [‘The Influence of Civil Adjudication Method Reform on the Evidence System in China’], Law Review, vol. 4, 1998, pp. 106–110, 115.

43. The Chinese original is 关于民事诉讼证据的若干规定 (2019).

44. Zhang and Walton, p. 107.

45. ibid.

46. David A Schum, The Evidential Foundations of Probabilistic Reasoning, John Wiley & Sons, New York, 1994, p. 93.

47. One possible explanation is that, rather than to prevent the admissibility into litigation of evidence that does not conform to the law, as claimed, the classification of evidence in the three procedural laws is a product of the investigation-centred criminal procedural mode and files-centred (i.e., case file) judgement mode. Thus, its purpose is to justify the evidentiary capacity of evidence collected and used in fact-finding in the investigation conducted by the public security bureau and presented in the case files in written form. This is why the types of evidence listed in the procedural laws reflect the steps involved in the investigation procedure specified in criminal procedural law, such as interrogation of criminal suspects, interviewing of witnesses, crime scene investigation and examination, search, and so on. See Jinsong Lin, 我国证据分类制度的功能反思 – 以刑事诉讼为中心的分析 [‘Rethinking the Function of Chinese System of Evidence Classification: Focusing on the Criminal Procedure’], Journal of Zhejiang University (Humanities and Social Sciences), vol. 45, no. 3, 2015, pp. 36–46.

48. It is asserted that China is one of only two countries in the world identifying types of evidence in its legislation; the other is Russia. See Lin.

49. The Civil Procedure Law of the People’s Republic of China.

50. The Chinese original is 电子数据. Its English translation i.e., electronic data, was taken from the China Law Info database.

51. The Chinese original is人民法院统一证据规定(司法解释建议稿).

52. Canadian General Standards Board, Electronic Records As Documentary Evidence (CAN/CGSB-72.34–2017), 2017, p. 4, available at <http://publications.gc.ca/collections/collection_2017/ongc-cgsb/P29-072-034-2017-eng.pdf>, accessed 13 April 2020.

53. Much of the information regarding rules governing the admission of business records is sourced from MacNeil.

54. In this article, authenticity of records is considered inclusive of their identity and integrity, and a distinction between these two characteristics of records will only be made where necessary.

55. MacNeil.

56. The Chinese original of this term is 形式真实.

57. The Chinese original of this term is 实质真实.

58. Yingming Liu, 中美书证证据能力规则之比较 [‘Comparing the Credibility of Documentary Evidence between China and the U.S.’], Academic Exchange, no. 2, 2012, pp. 52–56.

59. Weizhong Shi, Jing Wang and Pinger Shen, 私文书证认证规则探析 [‘Exploration of the Rules for the Admissibility of Private Records’], Journal of Law Application, no. 7, 2010, pp. 68–71.

60. Liu, Comparing the Credibility of Documentary Evidence.

61. ibid.; Shi, Wang and Shen; Zhichao Zhao and Guilong Zhao, 民事诉讼私文书证适用规则疑难问题研究 [‘On the Applicability Rules and Issues of Private Records as Documentary Evidence in Civil Litigations’], Journal of Law Application, no. 11, 2015, pp. 98–102.

62. The Chinese original is最高人民法院关于适用《中华人民共和国民事诉讼法》的解释.

63. The civil procedural law, Article 64.

64. Originated from the civil litigation of Anglo-American law, discovery ‘is a process through which the parties to a lawsuit formally exchange evidence and information before a case goes to trial’. The most common forms of discovery include interrogatories, requests for admissions, requests for production of documents; requests for production and inspection; and depositions. See Aaron Larson, ‘Conducting discovery in a civil lawsuit’, 2018, available at <https://www.expertlaw.com/library/civil-litigation/conducting-discovery-civil-lawsuit>, accessed 22 August 2020. Discovery procedure has been called ‘[t]he most distinctive feature of American civil procedure’, as cited in Ray Worthy Campbell and Ellen Claar Campbell, ‘Clash of systems: discovery in U.S. litigation involving Chinese defendants’, Peking University Transnational Law Review, vol. 4, no. 2, 2016, p. 134. A review of relevant literature both in Chinese and English shows that there are different understandings of the scope and substance of discovery; as a result, there are different opinions as to whether the Chinese legal system has the equivalent of the discovery process. In an earlier article published in a Chinese journal commenting on discovery in the United States, Qiao Xiongbing asserts, ‘in civil law countries, there is basically no pre-trial discovery system’, see Qiao Ciaobing, 也论美国的审前证据开示制度[‘Commenting on the American Pre-trial discovery’], Law Review, no. 4, 2010, p. 112. Recent research published either in Chinese or English journals shows that there is discovery in China, yet with a narrower role or different features, see Campbell and Campbell; Elizabeth Fahey and Zhirong Tao, ‘The pretrial discovery process in civil cases: A comparison of evidence discovery between China and the United States’, Boston College International and Comparative Law Review, vol. 37, no. 2, 2014, pp. 281–332. For instance, Campbell and Campbell argue that discovery does not work the same in China where litigation is judge-driven and the courts ‘resolve disputes in accordance with the law and applicable governmental policies’. See Campbell and Campbell, pp. 146–147. When discussing discovery in the Chinese context, Campbell and Campbell cite clauses in the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China on pre-trial evidence exchange and petition for evidence preservation, as they perceive the discovery and motion practice (specifically in the United States) as a process allowing the parties to uncover the facts and the applicable law, hence leading to a negotiated settlement payment before trial. For this understanding of discovery the clause usually cited is article 81 of the Civil Procedure Law of the People’s Republic of China (2017 Revision) stating that, where any evidence is extinguished or hard to obtain in time, if the circumstances are urgent, an interested party may, before instituting an action or applying for arbitration, apply for evidence preservation to a people’s court at the place where the evidence is located or at the place of domicile of the respondent or a people’s court having jurisdiction over the case. The court performs the preservation of the evidence, and the party applying for evidence preservation shall clearly state in the motion ‘the basic information of the evidence that needs to be preserved, the reasons for the motion for preservation, what preservation measures are to be adopted, and other content’ (Article 25, Some Provisions on Evidence in Civil Procedures). In their comparison of evidence discovery between China and the United States, Fahey and Tao understand evidence discovery as a procedure involving ‘one party exercising legally regulated procedural rights to collect evidence, to discover evidence, and to investigate evidence actively and proactively’ (p. 283). Stating that no Chinese law has yet clearly stipulated a discovery procedure, Fahey and Tao argue that the major aspects of evidence discovery include the following: (1) parties and lawyers conduct investigations and collect evidence; (2) the court conducts investigations and collects evidence; (3) expert evaluation; and (4) evidence exchange. They conclude that the evidence discovery system in China can be referred to as a ‘discovery model led by judges’ wherein the ‘judge has the leading power over collection, preservation, offering, and examination of the evidence’ (p. 292). Recent research published by Chinese scholars considers evidence exchange or the obligation to submit documentary evidence prior to trial as the equivalent of the discovery process. The former perspective is consistent with Campbell and Campbell’s understanding. As to the latter, the obligation to submit documentary evidence is defined thus: a party or a third party who holds the evidence and yet does not bear the burden of proof has the responsibility to submit the evidence to the court, so that the court can conduct evidence investigation because the party adduces the evidence using the document as a means of evidence, as cited in Yan Zhao, 民事诉讼文书提出义务制度研究[‘Research on the obligation system civil procedure documents’], Master thesis, Hebei University, 2020. For this understanding of discovery, the clause usually cited is Article 112 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China where the documentary evidence is under the control of the opposite party, the party who bears the burden of proof may submit a written application requesting the people’s court to order the opposite party to submit it before the expiry of the time for adducing evidence. See e.g., Bo Gao, 电子数据偏在问题之解决 – 基于书证提出义务规则的思考 [‘Resolution of the Issue of Asymmetry of Electronic Data – Based on an Examination of the Rule of the Obligation to Submit Documentary Evidence’], Science of Law (Journal of Northwest University of Political Science and Law), no. 2, 2019, pp. 69–76. To summarise, there are three different understandings of discovery: discovery as a process of evidence collection and investigation; discovery as a process for evidence exchange prior to trial; and discovery as a process for a party to obtain evidence that is not under its control. In any case, discovery process in China is different from that in common law systems.

65. Jianguo Xiao, 书证的真实性及其举证责任 [‘The Authenticity of Documentary Evidence and the Burden of Proof for such Authenticity’], China Trial, no. 53, 2010, pp. 92–93.

66. Weiqiu Long and Wei Pei, 电子证据概念与审查认定规则的构建研究 [‘Concept and Authentication Rules of Digital Evidence’], Journal of Beijing University of Aeronautics and Astronautics (Social Sciences Edition), vol. 29, no. 2, 2016, pp. 39–48.

67. The Chinese original is中华人民共和国合同法.

68. The Chinese original is中华人民共和国电子签名法 (2015修正).

69. The Chinese original is关于办理死刑案件审查判断证据若干问题的规定.

70. Pinxin Liu, 电子证据的收集与运用 – 以‘两个证据规定’为解读 [‘Collection and Use of Electronic Evidence – An Interpretation of the Two Provisions on Evidence’], Evidence Forum, vol. 16, no. 00, 2011, pp. 171–183.

71. The Chinese original is 关于办理刑事案件收集提取和审查判断电子数据若干问题的规.

72. The Chinese original is 公安机关办理刑事案件电子数据取证规则.

73. The Internet Court is a court of special jurisdiction in China that mainly handles Internet-related civil and administrative cases, such as disputes on online shopping contracts through e-commerce platforms, financial loan signed and performed on the Internet, ownership of the copyright of works published on the Internet, and others. Currently, three Internet courts have been established in Hangzhou, Beijing and Guangzhou.

74. MacNeil, p. 46, 50, 86.

75. Zhewei Liu, 民事电子证据：从法条独立到实质独立 [‘On the Independence of Electronic Evidence in Civil Procedure: from text to substance’], Evidence Science, vol. 23, no. 6, 2015, pp. 678–685.

76. Zongru Ji and Yang Niu, 论民事诉讼中电子数据的运用规则 [‘Evidence Rules on Electronic Data in Civil Procedure’], Evidence Science, vol. 24, no. 4, 2016, pp. 448–458; Liu, ‘On the Independence of Electronic Evidence’; Chang Wang and Zhiyong Fan, 互联网金融案件中电子证据制度的适用 [‘The Application of Electronic Evidence Law in Internet Finance Cases’], Journal of Law Application, no. 7, 2018, pp. 109–115.

77. The procedural law of civil cases, Article 64.

78. See note 64.

79. Though the Interpretations of the Application of the Civil Procedural law adopted in 2015 makes it possible for one party to request the court to order the other party to provide documentary evidence under its control (Article 112), it is not applicable to electronic data, which is a separate type of evidence. Academics in China are advocating revision of the rules for the obligation to submit electronic data evidence considering that many electronic data are very likely to be controlled by the opposing party or a third party; see for instance, B Gao, 电子数据偏在问题之解决 – 基于书证提出义务规则的思考 [‘Resolution of the Issue of Asymmetry of Electronic Data – Based on an Examination of the Rule of the Obligation to Submit Documentary Evidence’], Science of Law (Journal of Northwest University of Political Science and Law), no. 2, 2019, pp. 69–76.

80. For instance, in Yaoyun versus Shanghai Jialong Ririzhu Information Technology Co. LTD on disputes over service contract (Case no. (2019)-Hu-0104-Min-Chu-No. 15354), Yaoyun (the plaintiff) submitted his WeChat chat history with Wang Songge, a staff of Jialong Ririzhu as evidence to support his claim. Jialong Ririzhu admits the authenticity of the evidence, but argues that, ‘because the chat history is electronic data evidence, it is possible that Yaoyun has deliberately concealed evidence unfavourable to him. Therefore, the chat history cannot faithfully reflect the intent of both parties.’ In Huzhou Zhulaoda Industrial Co. Ltd versus Shanghai Xinchisheng Trading Co. Ltd on disputes over sales contract (Case no. (2018)-Hu-0113-Min-Chu-No.19920), the defendant (Shanghai Xinchisheng) submitted a screenshot of an email exchange with shopping malls and the plaintiff (Huzhou Zhulaoda), the plaintiff did not recognise its authenticity because the emails did not meet the requirements regarding the form of evidence, and because the source of the data could not be confirmed. The court did not recognise the authenticity of the evidence.

81. Ji and Niu; Long and Pei; Tianxin Mo, 从电子证据视角看我国证据规则的规范与完善 [‘An Examination of the Refinement and Development of the Rules for the Admission of Evidence in China from the Perspective of Electronic Evidence’], Graduate Law Review, CUPL, vol. 31, no. 2, 2016, pp. 37–44.

82. Liu, On the Independence of Electronic Evidence; Jing Ni, 民事诉讼中电子证据的真实性认定 [‘Research on Authenticity of Electronic Evidence in Civil Procedure’], Journal of Beijing University of Aeronautics and Astronautics (Social Science Edition), vol. 29, no. 2, 2016, pp. 55–63; Wang and Fan.

83. This is often used when requested by the court and when the electronic data is in the form of documents, e.g., emails, instant messages, or digital photos. By printing out the electronic record, its content will be frozen; therefore, this is a way to make sure that no change can be made to the evidence in its collection, transfer, and presentation.

84. Digital evidence preservation undertaken by a notary or copyright society upon application of the parties involves collecting and freezing electronic records and providing certification of the evidence. This is the most popular approach adopted in judicial practice in the collection of electronic evidence, and the probative force of the evidence obtained in this way is relatively high. The popularity of notaries for the certification of electronic evidence and the high probative force of the evidence obtained this way is partly due to Article 9 of Some Provisions of the Supreme People’s Court on Evidence in Civil Procedures (2008 Amendment), which states that facts that have been proved in a valid notary document do not need to be proved by the parties concerned with additional evidence unless the submitted evidence can be overthrown by evidence to the contrary. Yet, considering the complexities inherent in verifying the reliability and authenticity of electronic evidence, the lack of reliable techniques and methods that can be used by notaries, and the lack of uniform procedural rules across districts for the preservation and certification of electronic evidence, the certification provided by the notary can at the most ensure that electronic evidence was not altered in and after the collection process; it cannot guarantee that the evidence per se is reliable and authentic prior to collection.

85. According to the Civil Procedure Law of the People’s Republic of China, when evidence may be destroyed or difficult to obtain at a later time, a party may, in the course of litigation, apply to the court for evidence preservation, and the court may also take preservation measures on its own initiative; the law further specifies that application for evidence preservation can also be submitted prior to litigation or arbitration. These conditions for evidence preservation are applicable to electronic evidence as well; thus, parties can apply to the court for electronic evidence preservation.

86. Ziying Lin, 论第三方电子数据平台所存储数据的证据效力[‘Probative Force of Data Stored in Third Party Electronic Data Platform’], People’s Judicature, no.insert space between no. and 11, 2020, pp. 54–58. Per Article 111 of the Civil Procedure Law, when a litigation participant or any other person forges or destroys any important evidence, which obstructs the trial of the case by the people’s court, the people’s court may impose a fine or detention to the litigation participant or person according to the severity of the circumstances; and if suspected of any crime, the litigation participant or person shall be subject to criminal liability in accordance with the law.

87. ibid.

88. ibid.

89. Zizhu Li, 第三方电子数据平台固定电子证据的调查研究[‘Investigation on Fixation of Electronic Evidence by Third Party Electronic Data Platform’], 2018, n.p., available at <https://mp.weixin.qq.com/s/Wmx-7Hbi4f3YR0wGWbv_tQ–rd>, accessed 4 September 2020.

90. ibid.

91. Ning Cao, 电子数据第三方保全法律规制研究[‘Research on Legal Regulation of Third Party Preservation of Electronic Data’], 2018, Master thesis, Chongqing University of Posts and Telecommunications, p. 16.

92. 2020–2026年中国电子数据取证行业竞争格局及产业发展趋势预测报告[‘Current Competition Status and Development Trends Forecast Report on Chinese Electronic Data Forensics Industry (2020–2026)’], 2018, available at <http://www.reporthb.com/report/reportview143583.htm>, accessed 10 July 2020.

93. Zhihai Xiong and Jiabin Li, 论电子数据保全之司法应用[‘On Judicial Application of Digital Data Preservation’], Chongqing Social Science, no. 1, 2020, pp. 106–122.

94. A search of CNKI, a widely used database for academic research in China, for articles containing ‘third party’ and ‘evidence’ in its titles only returns 25 results.

95. See e.g., Min Hu, 第三方电子数据保全的应用性分析 [‘The Applied Analysis of the Third Party to Preserve Electronic Data’], 2016, Master thesis, Southwest University of Political Science and Law.

96. See e.g., Cao; Feng Sun, 论电子数据第三方证据保全 [‘Study on the Third Party Evidence Preservation of Electronic Data’], 2018, Master thesis, Chongqing University of Posts and Telecommunications; Li, ‘Investigation on Fixation of Electronic Evidence’.

97. See e.g., Hu; Cao; and Sun.

98. See e.g., Hu.

99. <https://www.tsa.cn/html/kxsjcfw/>

100. Li, ‘Investigation on Fixation of Electronic Evidence’.

101. Xiong and Li.

102. ibid.

103. ibid.

104. ibid.

105. ibid.

106. Li, ‘Investigation on Fixation of Electronic Evidence’.

107. Xiong and Li.

108. ibid.

109. The InterPARES Trust (ITrust) (2013–2019) project – a multi-national, interdisciplinary research project aimed to develop theoretical and methodological frameworks to assist the formulation of local, national and international policies, procedures, regulations, standards, and legislation ensuring public trust grounded on evidence of good governance, a strong digital economy, and a persistent digital memory – has examined the challenges posed by the use of cloud-based services to the management of records, in particular, to the protection and demonstration of the evidentiary capacity of records, and proposed a solution to address these challenges.

110. Kenneth Thibodeau, Daryll Prescott, Richard Pearce-Moses, Adam Jansen, Katherine Timms, Giovanni Marchetti, et al., Preservation as a Service for Trust (PaaST): Functional and Data Requirements for Digital Preservation, 2018, p. 8, available at <https://interparestrust.org/assets/public/dissemination/PreservationasaServiceforTrust1_0-FINAL.pdf>, accessed 14 April 2020.

111. Luciana Duranti, ‘Building a Trustworthy System: What will Trustworthy Systems Look Like in the Future?’, in Philip C Bantin (ed.) Building Trustworthy Digital Repositories: Theory and Implementation, Rowman & Littlefield Publishing Group, Lanham, MD, 2016.

112. Thibodeau, et al., p. 89.

113. The OAIS reference model is a broad conceptual framework, developed by the Consultative Committee for Space Data Systems (CCSDS), for the preservation and access to digital information over the long term. It characterises the functional components, information objects, and environment of an OAIS-type archive, which serves as the point of reference for digital preservation requirements, and it establishes common concepts and terminologies that can encourage dialogue and collaboration.

114. Adam Jansen, ‘Preservation as a Service for Trust’, 2017, available at <http://ipres2017.jp/wp-content/uploads/5Adam-Jansen.pdf>, accessed 11 July 2020.

115. Giovanni Michetti, ‘Preservation as a Service for Trust (PaaST)’, 2015 Digital Heritage, Granada, 2015, pp. 465–466.

116. Duranti, ‘Building a Trustworthy System’.

117. An entity involved in executing one or more preservation capabilities. Thibodeau et al., p. 27.

118. An entity whose approval is needed for an action to be executed. Thibodeau et al.

119. An entity response for resolving a problem that occurs in preservation activities. Thibodeau et al.

120. An entity who determines if the outcome of an action is acceptable. Thibodeau et al.

121. Binary encoding is a ‘specification of how an IntellectualEntity is digitally encoded and how the bit strings that contain that encoding should be processed in order to instantiate the IntellectualEntity in a form that enables it to convey information as intended’. Thibodeau et al., p. 16.

122. Adrian Cunningham, Ken Thibodeau, Hrvoje Stančić, and Gillian Oliver, ‘Exploring Digital Preservation in the Cloud’, in Luciana Duranti and Corinne Rogers (eds), Trusting Records in the Cloud, Facet Publishing, London, 2019, pp. 179–206.

123. Heuristic information is human readable information that ‘supports the discovery, understanding, evaluation or use of one or more Preservation Targets’. See Thibodeau et al., p. 16.

124. Intellectual entity is an ‘artefact that is intended to communicate information. Thibodeau et al.

125. Luciana Duranti, Adam Jansen, Giovanni Michetti, Courtney Mumma, Daryll Prescott, Corinne Rogers, and Kenneth Thibodeau, ‘Preservation as a Service for Trust (PaaST)’, in John R.Vacca (ed.) Security in the Private Cloud, CRC Press – an imprint of Taylor & Francis Group, Bocca Raton, FL, 2016, p. 60.

126. ibid., p. 59.

127. Cunningham et al., p. 188.

128. Li, ‘Investigation on Fixation of Electronic Evidence’.

129. ibid.

Additional information

Funding

This paper was based on the first author’s PhD dissertation. Additional research was supported by Tianjin Municipal Education Commission Scientific Research Projects, entitled ‘Rules Governing the Admissibility of Electronic Records in Civil Cases in China’ (Project No. 2019SK054).

Notes on contributors

Weimei Pan

Dr. Weimei Pan is an assistant professor in the School of Management at Tianjin Normal University where she currently teaches courses on diplomatics and electronic records management. She earned her PhD from the University of British Columbia (UBC) in 2019, where she focused on the management of records as evidence and information in the context of cloud-based services in China. Her research interests include diplomatics in China, records management, archival education, and the protection and demonstration of records as legal evidence. Her current research focuses on the management of electronic records so that they can be admitted in litigations in the Chinese context and diplomatics in China.

Luciana Duranti

Dr. Luciana Duranti is a Professor of archival theory, diplomatics, and the preservation of digital records in the master’s and doctoral archival studies programs of the School of Information of the University of British Columbia. She is Director of the Centre for the International Study of Contemporary Records and Archives (www.ciscra.org) and of the InterPARES research project on the long-term preservation of authentic electronic records (www.interpares.org), involving, over 21 years, about 500 researchers in 42 countries. She has published extensively on the use of archival and diplomatic concepts for the understanding of new technologies, and on how to ensure the continuing trustworthiness of digital records.