法律英语复习:中国的公证制度

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 legalrelations in civil matters. State notary offices, at the request of applicants, notarize legal actsand the truthfulness and legality of legal documents and facts in order to protect publicproperty and safeguard the lawful rights and interests of citizens. Since October 1, 2000, theMinistry of Justice has implemented a plan to reform the notary system. Under the newscheme, public notary offices are no longer administrative bodies; rather, they are non-profitentities with a legal-person status that independently conduct notary business to meetmarket demand and assume full responsibility for their operations. In the future, the state willno longer approve the establishment of public notary offices as administrative bodies. Publicnotaries 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 ofprovinces, autonomous regions and municipalities, districts of cities may also set up publicnotary offices. All the offices are independent of each other.

Each office should have a director and a deputy director who should be notariesthemselves.

Scope of Business

· Notarize civil legal acts such as contracts, trusts, wills, gifts, division of property, andadoption 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 andseals on certificates, consistency of copies of certificates, excerpts, translations andphotocopies with the originals;

· Notarize the enforceability of creditor documents such as repayment agreements andcontracts on recovery of debts;

· Auxiliary business, such as preservation of evidence, maintenance of wills or otherdocuments, drafting notary documents on behalf of clients, notarizing the opening of lotterydraws, 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 anddocuments that have been notarized through legal procedures should be regarded as a basisfor establishing facts, except where opposing evidence is sufficient to overrule thenotarized 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 afterthey are notarized. These include adoption of children and marriage registration betweenChinese citizens and foreigners.

· Extraterritoriality. Notarized documents are legally valid outside China. This is anextension of the inherent legal effect of notarized documents abroad. According tointernational practice, notarized documents sent by Chinese citizens and legal entities for useabroad can take legal effect and be accepted by the host country only after they are certified bythe Chinese Foreign Ministry and Foreign Affairs Offices of the provinces, autonomous regionsand municipalities or foreign embassies or consulates in China.

Procedures

Public notary offices and persons applying for notarization should observe the followingprocedures:

1. Application and Acceptance of Applications

Except for wills and adoption, which require the applicant to go to the public notary officein person, citizens or legal persons can authorize an agent to handle the notarizationprocedures on their behalf. Applications should be filed with a public notary office that hasjurisdiction 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 ofauthorization, documents to be notarized, property ownership certificates or othermaterials. The public notary office should make a preliminary decision whether to accept theapplication or not upon receipt of application documents.

2. Review

An important link in notarization, public notaries should carefully review the number ofapplicants, identity, qualifications, capability of civil acts, intentions of applicants andapplicable rights. They should also verify whether the acts, facts or documents to benotarized are true and legal, whether the documents to be notarized are complete, whether thewording 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 astendering and bidding, opening of lottery draws and auction bids. In such cases, public notariesshould be at the scene themselves and read a public notary statement regarding what istruthful and legal. Furthermore, they should produce a notary document and deliver it toapplicants within seven days of notarization.

5. Reconsideration

Applicants who object to decisions given by a public notary office not to accept anapplication, refuse to notarize or withdraw a public notary document may apply within aspecified period of time to the judicial authorities for reconsideration; those who object to thereconsideration decision may file a suit to a court of law within the specified period of time.