According to the Labour Contract Law of the PRC, an employer shall sign a written labour contract with its employee. If the employer fails to conclude a written labour contract with the employee for more than one month but less than one year from the date of employment, it shall pay the employee double wages for each month during the foregoing period.

With the rapid development of electronic technology and internet, more and more employers prefer to sign labour contracts in electronic form. So, here comes the question, whether an electronic labour contract is a written labour contract? Although the Labour Contract Law of the PRC does not specify the written forms of labour contract, Article 469 of the Civil Code of the PRC clearly stipulates that the parties concerned may conclude a contract in written, oral or other forms. The written forms include the form of a paper contract, letter, telegram, telex, facsimile and other forms that can express the described contents in a tangible way. The data message that can express the contents in a tangible way by means of electronic data exchange or e-mail and can be accessed at any time shall be regarded as a written form. Therefore, an electronic contract is a special form of written contract. The Labour Contract Law of the PRC is a special law while the Civil Code of the PRC is a general law. The provision of the general law shall be applied if there is no such provision under the special law. That is, an electronic labour contract is a kind of written labour contract.

Furthermore, the Letter on Issues Related to the Conclusion of Electronic Labour Contracts issued by the General Office of the Ministry of Human Resources and Social Security of the PRC (Ren She Tin Han [2020] No. 33) also makes it clear that employers and employees may conclude written labour contracts in electronic form through mutual consultation. The electronic labour contract signed strictly in accordance with the relevant laws and regulations has the same legal effect as the paper labour contract concluded by traditional means.

In conclusion, the electronic labour contract concluded in accordance with the laws and regulations is legally valid in China. In fact, in judicial practice, the legality and validity of labour contract concluded by electronic means has been generally recognized. Nonetheless, the employer shall proceed with caution since in the event of a labour dispute, it will bear the burden of proving the conclusion and validity of the electronic labour contract. In order to avoid the subsequent legal risks, the employer must ensure that the generation, transmission and storage of the electronic labour contract comply with the requirements of the Electronic Signature Law and other applicable laws and regulations of the PRC, and make sure that electronic labour contract is complete, accurate and cannot be tampered with.

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