Jurisdiction - China
News
China – Recent Developments In Archive Management For Enterprises.

26 April, 2013

 

 

On December 17, 2012, the State Archives Administration (“SAA”) issued Provisions on the Scope of the Collection of and the Preservation Period for the Archives of Enterprises (Order of SAA No. 10) (“Rule No. 10”). Rule No. 10 became effective on February 1, 2013.

 

I. Purpose of Rule No. 10

 

Before Rule No. 10 was issued, there were no relevant PRC laws that provided detailed and specific requirements in relation to the scope of the collection of and the preservation period for the archives of enterprises.

 

The Measures on Filing of Archives by State-owned Enterprises, which were issued by the SAA and the State Asset Administration and Supervision Commission (“SASAC”) on January 20, 2004 (the “SOE Archive Filing Measures”), categorized various management archives and non-management archives into different categories. However, the SOE Archive Filing Measures apply only to state-owned enterprises, which exclude foreign invested enterprises (“FIEs”) and privately owned enterprises.

 

 

The Interim Regulations on Archive Management by Foreign-Invested Enterprises, which were issued by the Ministry of Foreign Economic and Trade Commission, Economic and Trade Commission and SAA on December 29, 1994 (the “FIE Archive Management Regulations”), provide that the preservation period for archives of an FIE should be divided into three categories, i.e., permanent, long-term and short-term. However, the FIE Archive Management Regulations do not stipulate a specific time for long-term and short-term preservation and do not apply to enterprises other than FIEs.

 

SAA issued the Archive Standards for Enterprises (DA/T42-2009) (the “Enterprise Archive Standards”) on November 2, 2009. The Enterprise Archive Standards, as recommended standards without the force of law, provide an industry standard for filing of archives by enterprises. The Enterprise Archive Standards set out in detail the scope of collection and the preservation period for management archives and non-management archives in an enterprise. However, the Enterprise Archive Standards apply to large and medium-sized industrial enterprises and not to other types of enterprises. Such other enterprises may, however, refer to the Enterprise Archive Standards.

 

 

Rule No. 10 sets out detailed provisions on the scope of collection of and the preservation period for management archives for an enterprise. The provisions on the preservation of management archives in the annex titled “preservation period of management archives” in Rule No. 10 were basically adopted from Appendices A1 to A4 attached to the Enterprise Archive Standards. Since Rule No. 10 is binding in law, the minimum preservation period for management archives, as adopted from the Enterprise Archive Standards, becomes a mandatory provision with binding effect. This means that enterprises will need to abide by this minimum preservation
period.

 

II. Contents of Rule No. 10

 

1. Structure of Rule No. 10

 

Rule No. 10 basically adopts the structure used in the Provisions on the Collection and Preservation of Government Archives issued by SAA on December 18, 2006. Rule No. 10 sets out, among other things, the archives that should be collected, the archives that do not need to be collected and the different preservation periods for collected archives.

 

2. Application of Rule No. 10

 

Rule No. 10 applies to all enterprises established within the PRC. The headquarters of a corporate entity established in the PRC may request the entity’s offshore subsidiaries to comply with Rule No. 10. Public institutions operating in the field of science and technology may also refer to Rule No. 10.

 

3. Scope of Collection of Archives

 

Rule No. 10 provides that the following archives should be collected: a) documents reflecting an enterprise's history, research, development, production, service, operation, management and other business activities, any of which contribute to the enterprise's business activities or to national construction, social development and historical research; b) documents that constitute evidence of the rights and interests of the state, the enterprise, and the enterprise's employees; c) documents containing instructions or orders from relevant government authorities and superior entities and with which an enterprise is required to comply or implement, as well as documents from unaffiliated entities with which an enterprise needs to comply, implement or otherwise refer to; d) documents relating to an enterprise and that are issued by professional advisors; e) important documents submitted by any subsidiary and controlling entity of the enterprise; and f) documents which should be filed and preserved in accordance with relevant laws and regulations and other documents which are fundamental to the various activities of an enterprise.

 

4. Preservation Period

 

Rule No. 10 divides the period for which archives should be preserved into permanent and fixed terms. A fixed term can be 30 years or 10 years. A 10-year or 30-year (as the case may be) fixed term is the minimum preservation period. An enterprise can stipulate a longer term.

 

Management archives that should be preserved permanently include important archives relating to an enterprise's formation and history, internal resolutions, property rights, investments, decisions by industry associations or professional advisors affecting the enterprise, evaluation and audit reports, notarizations and authentications, work in connection with affairs of the China Communist Party (CCP) or administrative work, human resources, the media, important visiting individuals and internal reports on important issues within the enterprise’s group.

 

Rule No. 10 has, based on the Enterprise Archive Standards, stipulated in an annex titled “preservation period for management archives in enterprises” a minimum preservation period for 18 categories of “management archives”. Such archives include those relating to business management, production and technology management, administration, and work in connection with CCP affairs.

 

Pursuant to Rule No. 10, an enterprise should collect and preserve “non-management archives” relating to production, research and development, basic construction, equipment, accounting and government officials and workers in compliance with relevant regulations and standards and based on the enterprise’s actual situation. We understand that Appendices A5 to A10 of the Enterprise Archive Standards are important references for the collection and preservation of the non-management archives mentioned above.

 

5. Management of the Scope of Collection of and Preservation Period for Archives

 

Rule No. 10 requires an enterprise to produce a table containing an appropriate scope for the collection of and the period of preservation for management archives (the “Table”). This exercise should be conducted in accordance with Rule No. 10 and any relevant special regulations. In addition, an enterprise should guide subordinating enterprises in preparing similar Tables and approve the same.

 

Prior to Rule No. 10, the Provisions on Archive Management by Enterprises required centrally governed state-owned enterprises to file with SAA its internal rules and measures for archive management. Rule No. 10 further sets out approval requirements for Tables produced by state-owned enterprises. Tables prepared by the headquarters of centrally governed state-owned enterprises (including but not limited to central state-owned enterprises under the supervision of SASAC, central financial enterprises and central cultural enterprises) should be submitted to SAA for approval before implementation. Tables prepared by the headquarters of a locally governed state-owned enterprise should be submitted to the local counterpart of SAA of the same level as such enterprise for approval before implementation.

 

III. Remarks on Rule No. 10

 

Rule No. 10 has contributed to the further development of the legal framework for archive management by enterprises in China. This legal framework consists mainly of the Archive Law (the “Archive Law”) of 1996, the Implementation Measures on Archive Law (the “Archive Implementation Measures”) of 1999, the Provisions on Archive Management by Enterprises of 2002, the FIE Archive Management Regulations of 1994, the SOE Archive Filing Measures of 2004, and the Interim Provisions on the Supervision and Inspection of Archive Filing of 1992.

 

Under Rule No. 10, the preservation period for an archive depends on whether the archive is important or general. While provisions under Rule No. 10 are much more specific than their predecessors, such provisions do not make an express distinction between important archives and general archives. Instead, Rule No. 10 leaves it to the enterprise to make a judgment based on the enterprise’s actual situation. Interpretation and implementation of Rule No. 10 is likely to depend heavily on policy.

 

Regarding the implementation of Rule No. 10 and preparation of the Table, SAA and its local counterpart treat state-owned enterprises and other types of enterprises differently. Pursuant to the Provisions on the Range of Archives Collected by Archival Facilities at All Levels and of All Classes, state-owned enterprises should, after a certain period (usually 10 years or 20 years pursuant to the Archive Implementation Measures) submit archives to internal archival facilities established by themselves or to external comprehensivearchival facilities of the same level as such enterprises. A collectively-owned enterprise or privately owned enterprise can submit its archives to an external comprehensive archival facility by mutual agreement. If certain archives are useful to the state and society, the comprehensive archival facility may obtain such archives by way of donation taking or purchase. However, pursuant to the FIE Archive Management Regulations, an FIE owns its archives and is obligated to protect such archives.

 

Based on our consultations with SAA’s local counterparts in Beijing and Shanghai, at this stage, SAA and its local counterparts will mainly guide and supervise state-owned enterprises on producing the Table. While Rule No. 10 also applies to FIEs and privately owned enterprises, in practice, SAA and its local counterparts indicate that such enterprises may gradually adjust to the requirements of Rule No. 10. Under Article 10 of the Archive Law, an enterprise’s archives that should be collected and kept as archives pursuant to state regulations must, in accordance with the relevant regulations, be regularly submitted to internal archival administrators for centralized administration. No person may keep such archives as his or her personal property. Article 24 of the Archive Law further stipulates that failure to comply with these rules may lead to the imposition by SAA, its local counterparts or other competent authorities of administrative sanctions on those persons directly responsible for the failure to comply. If the failure to comply amounts to a crime, criminal responsibility may be imposed in accordance with the law. If any FIE or privately owned enterprise fails to comply with Rule No. 10 by failing to prepare or revise Tables or fails to collect those archives that should be collected pursuant to relevant laws, SAA or its local counterparts may impose sanctions on the related responsible persons.

 

Jun He 5

 

For further information, please contact:

 

Feng Rui, Partner, Jun He
fengr@junhe.com

 

Tu Jun, Associate, Jun He
tuj@junhe.com

 

 
 

Comments are closed.