1. Definition of Notarization for Evidence
Notarization for evidence means the extraction, storage, fixing, description of the evidences and the behavior processes which are related to the rights and interests of the applicant and is of legal significance, or the activities proving the authenticity of the evidence collection behavior of the applicant, held by notarization organization based on the application of individual, legal person or other organization.
2. Necessity of Notarization for Evidence in Labor Disputes
Types of labor disputes are becoming increasingly complicated with the increase of labor disputes. In practice, as the employer bears comparatively heavier burden of proof in labor disputes, whether the employer is able to submit sufficient and solid evidence plays an important role in the lawsuit. It is however likely that the evidence would be lost due to the nature of themselves and various elements that influence the collection of evidence in practice. Therefore, notarization for evidence sometimes plays a significant role in labor cases.
3. Types of the Notarization for Evidence in Labor Disputes
With rapid development of electronic informationization in recent years, notarization for evidence involves more aspects than usual, and it brings new challenges to employers as well. In labor cases, common evidence that needs to be notarized include internal rules and regulations of the employer, emails, communication records, handover of company’s properties, properties of working premise and delivery of documents. The following paragraphs will discuss several important principles worthy of attention during the process of notarization for evidence in practice.
4. Principles of Notarization for Evidence that shall be Paid Attention to in Labor Disputes
1) Primitiveness of Evidence
In labor cases, the employer shall as far as possible to maintain the primitiveness of the evidence that it provides, to enhance its probative value. For instance, with the popularity of the paperless-office model, more and more employers would publish their internal rules and regulations via internal intranet of the employer. However, the probative value of such internal rules and regulations published via intranet may be questioned and challenged in the event that the employer does not make the notarization for the internal rules and regulations until labor disputes arise, for that the intranet may be updated and the employer has access to modify its intranet unilaterally at any time. Therefore, it is advised that the employer should apply for notarization with regard to the original status of the internal rules and regulations when they are published via the internal network of the company, if applicable.
2) Legitimacy of the Collection of Evidence
The legitimacy of evidence collection is the basic pre-condition for relevant materials to become evidence. With respect to this point, as notarization for emails and private properties of employees may concern personal privacy of the employees, the employer should pay particular attention to the methods and approaches of collecting such evidences while applying for notarization for them, which shall not infringe upon personal privacy of the employees, otherwise such notarization is highly likely to be challenged in labor disputes. Please find the below examples for reference.
Email is currently a mainstream way of communication in the office. Exchange of information via email tends to be deemed a key part in labor disputes. Meanwhile, e-mail normally needs to be notarized to enhance its proof capability as the electronic data can be modified easily. However, the employer should make a strict distinction between company’s mailbox/computer and private mailbox/computer with regard to where the emails are presented when applying for notarization for these emails. It is generally believed that the emails saved in company’s mailbox/computer generate from performing duties of an employee and these emails belong to the company, in which case the employer is able to apply for notarization without getting consent of the employee. In the contrary, with respect to those saved in private mailbox/computer, the employer must obtain prior consent from the employee, otherwise notarization is susceptible to charges of violation of privacy. Also in practice, the notary will not agree to handle such notarization. Even if such notarization is made, the validity of which may probably is not be recognized or accepted by the court or arbitration.
(2) Communication Records
As communication technology and the popularity of electronic communications evolve, there is a growing possibility that the evidence of violating disciplines would exist in Wechat messages and text massages. The notarization for such evidence is becoming increasingly common in recent years. In practice, an employer may apply for notarization through screenshot with respect to such communication records. However, it is worth noting that in the event that the records are saved in the employee’s account, the employer shall obtain consent from the employee before applying for notarization, otherwise the notarization may be challenged due to illegal approach thereof.
3) Integrity of the Chain of Evidence
When an employer applies for notarization for evidence, the employer shall protect the integrity of the entire chain of evidence from being broken or damaged in order to preserve the original data. For example, the notary shall be on the spot during the entire handover process (i.e. the whole process of handover of property from the employee to the employer, the on-spot inspection of the property and the entire storage process of such property) when the employer handles handover of company properties with the employee to ensure the integrity of the entire chain of evidence and protect the proof capability from being challenged due to the disruption of the chain of evidence.
Of course, expect for the articles, in view of the behavior, we also need to take some measures to protect the integrity of the notarization process and the entire chain of evidence. For example, in the process of notarization for real-time data, the notary shall, according to the operating sequence, record the entire procedures of logging-in and entering to the relevant URL (web page), downloading and printing (or burning a CD) and so forth. Also, they need to record the name and version of the operating software used in the process. Where necessary, they could make video record of the entire procedure of notarizing such evidences.
4) Objectivity of Notary
There are certain difficulties to make notarization for delivery of notices afterwards due to the timeliness of notice delivery; therefore it is generally advised that the employer applies for notarization for evidence at the same time when important notice is delivered. Besides, it is highly suggested that the notary shall record the process of delivery objectively rather than participating in delivery directly when the employer conducts notarization for the delivery of important files. Otherwise the notarization may be questioned due to lack of objectivity.