Public notaries are persons accredited by the state to witness
civil matters for legal purposes. In the past, public notaries were
state offices representing the state in witnessing legal relations
in civil matters. State notary offices, at the request of
applicants, notarize legal acts and the truthfulness and legality
of legal documents and facts in order to protect public property
and safeguard the lawful rights and interests of citizens. Since
October 1, 2000, the Ministry of Justice has implemented a plan to
reform the notary system. Under the new scheme, public notary
offices are no longer administrative bodies; rather, they are
non-profit entities with a legal-person status that independently
conduct notary business to meet market demand and assume full
responsibility for their operations. In the future, the state will
no longer approve the establishment of public notary offices as
administrative bodies. Public notaries will be recruited openly
through examinations administered by the Ministry of Justice.
Setup of Public Notary Offices
Public notary offices are set up in municipalities directly under
the central government, counties (autonomous counties), and cities.
Subject to approval from judicial authorities of provinces,
autonomous regions and municipalities, districts of cities may also
set up public notary offices. All the offices are independent of
each other.
Each office should have a director and a deputy director who should
be notaries themselves.
Scope of Business
- Notarize civil legal acts such as contracts, trusts, wills,
gifts, division of property, and adoption of children;
- Notarize facts that amount to civil legal acts such as birth,
death, marriage, divorce, kinship, identity, degree, and
experience;
- Notarize documents that amount to civil legal acts such as
authenticity of signatures and seals on certificates, consistency
of copies of certificates, excerpts, translations and photocopies
with the originals;
- Notarize the enforceability of creditor documents such as
repayment agreements and contracts on recovery of debts;
- Auxiliary business, such as preservation of evidence,
maintenance of wills or other documents, drafting notary documents
on behalf of clients, notarizing the opening of lottery draws,
etc.
Validity of Contracts
Notarized documents are good for the following four purposes:
- Evidence. Article 67 of the Civil Procedure Law states, "Legal
acts, legal facts and documents that have been notarized through
legal procedures should be regarded as a basis for establishing
facts, except where opposing evidence is sufficient to overrule the
notarized documents."
- Enforceability. At present, this is limited only to the
recovery of debts and goods. Liability documents notarized by
public notaries are enforceable; if one party fails to comply, the
other party can apply to the local grassroots court that has
jurisdiction for enforcement.
- Legality. This means certain legal acts take effect and become
legally binding only after they are notarized. These include
adoption of children and marriage registration between Chinese
citizens and foreigners.
- Extraterritoriality. Notarized documents are legally valid
outside China. This is an extension of the inherent legal effect of
notarized documents abroad. According to international practice,
notarized documents sent by Chinese citizens and legal entities for
use abroad can take legal effect and be accepted by the host
country only after they are certified by the Chinese Foreign
Ministry and Foreign Affairs Offices of the provinces, autonomous
regions and municipalities or foreign embassies or consulates in
China.
Procedures
Public notary offices and persons applying for notarization should
observe the following procedures:
1.
Application and Acceptance of Applications
Except for wills and adoption, which require the applicant to go to
the public notary office in person, citizens or legal persons can
authorize an agent to handle the notarization procedures on their
behalf. Applications should be filed with a public notary office
that has jurisdiction and an application form should be filled out
and be affixed with a signature or seal. Applications should come
with other supporting documentation such as ID, letter of
authorization, documents to be notarized, property ownership
certificates or other materials. The public notary office should
make a preliminary decision whether to accept the application or
not upon receipt of application documents.
2.
Review
An
important link in notarization, public notaries should carefully
review the number of applicants, identity, qualifications,
capability of civil acts, intentions of applicants and applicable
rights. They should also verify whether the acts, facts or
documents to be notarized are true and legal, whether the documents
to be notarized are complete, whether the wording is accurate, and
whether the signature or seal is complete.
3.
Certification
Public notaries should produce a public notary certificate for
qualified applicants.
4.
Special Procedures
These refer to procedures required for special types of public
notarization, such as tendering and bidding, opening of lottery
draws and auction bids. In such cases, public notaries should be at
the scene themselves and read a public notary statement regarding
what is truthful and legal. Furthermore, they should produce a
notary document and deliver it to applicants within seven days of
notarization.
5.
Reconsideration
Applicants who object to decisions given by a public notary office
not to accept an application, refuse to notarize or withdraw a
public notary document may apply within a specified period of time
to the judicial authorities for reconsideration; those who object
to the reconsideration decision may file a suit to a court of law
within the specified period of time.
