Chương IV Luật Công chứng 2006: Thủ tục công chứng hợp đồng, giao dịch

Chapter IV

 PROCEDURES FOR NOTARIZING CONTRACTS AND TRANSACTIONS

Section 1. GENERAL PROCEDURES FOR NOTARIZING CONTRACTS AND TRANSACTIONS

Article 35. Notarization of contracts and transactions which have been prepared in their final form

1. An applicant for notarization shall lodge one set of a file requesting notarization to include the following documents:

(a) Request for notarization of the contract or transaction on the standard form;

(b) Final draft of the contract or transaction;

(c) Copy of the applicant's personal papers;

(d) If the contract or transaction involves property for which the law stipulates ownership or use right must be registered, copies of the certificate of ownership or use right to such property or other papers able to be used instead of such certificates;

(dd) Copies of other documents relevant to the contract or transaction which the law stipulates must be available.

2. A copy as stipulated in clause 1 of this article means a photocopy, printed copy or computerized copy with complete and accurate contents the same as in the original but not yet notarized.

Upon submitting the copies, the applicant must also present the original version of those documents for cross-check purposes.

3. A notary shall receive a file requesting notarization and examine all the documents therein, and if the file is complete and complies with law then the notary shall accept it and record it in the notarization register.

4. Where there are grounds for concluding that there are unclear items in a file requesting notarization; that there are indications of a threat or coercion in relation to the contract or transaction; that there is doubt about the capacity for civil acts of the applicant; or that there is doubt that the subject matter of the contract or transaction truly exists, then the notary shall request clarification from the applicant or, at the request of the applicant, shall conduct verification or seek an assessment. If the item is not clarified, the notary shall have the right to refuse notarization.

5. The public notary shall examine the final draft of the contract or transaction, and if it contains anything in breach of law or contrary to social morals, or if the subject matter of the contract or transaction is inconsistent with the reality, the notary must explain same to the applicant for the latter to rectify such item. If the item is not rectified, the notary shall have the right to refuse notarization.

6. An applicant for notarization shall read again the whole of the final draft of the contract or transaction or the notary shall read same to the applicant. If the applicant agrees with all the contents, he or she shall sign each page of the contract or transaction, and thereafter the notary shall also sign each page and record the testimony of the notary.

Article 36. Notarization of contracts and transactions drafted by a notary on request of applicant for notarization

1. An applicant for notarization shall lodge one set of a file requesting notarization in accordance with sub-clauses (a), (c), (d) and (dd) of article 35.1 of this Law, and then explain to the notary the contents of the contract or transaction and the applicant's intention to enter into such contract or transaction.

2. The notary shall carry out the tasks stipulated in clauses 2, 3 and 4 of article 35 of this Law.

If the contents of the contract or transaction and the applicant's intention to enter into such contract or transaction are authentic and not in breach of law or contrary to social morals, then the notary shall draft the contract or transaction.

3. An applicant for notarization shall read the whole of the draft of the contract or transaction or the notary shall read same to the applicant. If the applicant agrees with all the contents, he or she shall sign each page of the contract or transaction, and thereafter the notary shall record the testimony of the notary and sign each page.

Article 37. Authority to notarize contracts and transactions relating to real property

1. A notary of a notary practising organization shall have authority to notarize contracts and transactions relating to real property within the area of the province or city under central authority where the head office of such notary practising organization is located, apart from the case stipulated in clause 2 of this article.

2. A notary of a notary practising organization shall have authority to notarize a will [regarding], or a document refusing to receive an inheritance being real property.

Article 38. Time-limit for notarization

1. The time-limit for notarization shall be calculated from the date of receipt by the notary practising organization of a complete file from an applicant for notarization up to the date of return of the notarization results. Any time taken to conduct verification or obtain an assessment shall not be included in this calculation.

2. The time-limit for notarization shall not exceed two (2) working days; in the case of a complex contract or transaction this time-limit may be extended but not beyond ten (10) working days.

Article 39. Place of notarization

1. Notarization must be conducted at the head office of the notary practising organization, except for the cases referred to in clause 2 of this article.

2. Notarization may be conducted outside the head office of a notary practising organization when the applicant for notarization is an old person who cannot travel, a person under detention or serving a prison sentence, or a person who for a legitimate reason is unable to attend the head office of the notary practising organization.

Article 40. Language in notarized documents

1. The written language in a notarized document must be clear and legible and must not be abbreviated or symbolized. Words or letters must not be inserted in or written above lines, items may not be erased, and spaces may not be left blank, except where otherwise stipulated by law.

2. The time of notarization must include the day, month and year; and the minute and hour of notarization may also be specified if so requested by the applicant or if deemed necessary by the notary. All numbers must be stated in both figures and words, except where otherwise stipulated by law.

Article 41. Signing or fingerprinting notarized documents

1. An applicant for notarization and witnesses must sign the notarized document in front of the notary.

Where a person authorized to enter into a contract on behalf of a credit institution or other enterprise has registered his or her specimen signature with the notary practising organization, such person may sign a contract in advance and the notary must then compare the signature on the contract with the specimen signature before the notary conducts notarization.

2. Fingerprinting shall only be permitted in lieu of signing a notarized document when the applicant for notarization or a witness is unable to sign due to his or her disability or inability. When fingerprinting, the applicant or witness must use the right thumb but if unable to so do, the left thumb may be used. If fingerprinting is impossible with both thumbs, the applicant or witness may use any finger provided that the notarized document specifies which finger of which hand was used.

3. Fingerprinting shall also be permitted together with signing in the following cases:

(a) Notarization of a will;

(b) Upon request of the applicant for notarization;

(c) Where deemed necessary by the notary to protect the interests of the applicant for notarization.

Article 42. Numbering pages of notarized documents

If a notarized document consists of more than one page, the pages must be numbered. If a notarized document consists of more than two pages, it must bear a bridging or integrity seal between the pages.

Article 43. Rectifying technical errors in notarized documents

1. Technical error means a mistake made during the process of copying, typing or printing of the notarized document and where rectification does not affect the rights and interests of the parties to the contract or transaction.

2. The person in charge of conducting rectification of technical errors in a notarized document must be the notary working for the notary practising organization which notarized such document. If the notary practising organization which notarized such document has terminated its operation or dissolved, then a notary working for the notary practising organization currently archiving such notarization file shall be permitted to conducting rectification of technical errors.

3. When rectifying technical errors in a notarized document, the notary must review each error which needs to be rectified by comparing same with the documents in the file; underline what needs to be rectified; specify in the margin which letters, marks or numbers have been rectified; and affix his or her signature and the seal of the notary practising organization thereto. The notary shall advise all parties involved in the contract or transaction that the technical errors have been rectified.

Article 44. Notarizing amendments and additions to or cancellation of a contract or transaction

1. Any amendment or addition to or cancellation of a contract or transaction which has been notarized shall only be permitted to be made with the written consent or undertaking of all parties involved in such contract or transaction, which consent or undertaking must also be notarized.

2. The person in charge of notarizing any amendment or addition to or cancellation of a contract or transaction which has been notarized must be a public notary working for the notary practising organization which conducted such notarization. If the notary practising organization which notarized such document has terminated its operation or dissolved, then a notary working for the notary practising organization currently archiving such notarization file shall be permitted to notarize the amendment or addition to or cancellation of the contract or transaction.

3. Procedures for notarizing amendments or additions to or cancellation of a contract or transaction shall be implemented in accordance with the provisions in Chapter IV of this Law.

Article 45. Persons authorized to request a court to declare a notarized document to be null and void

A notary, an applicant for notarization, a witness, a person with related rights and interests and any competent State body shall have the right to request a court to declare a notarized document to be null and void when there are grounds for believing that the notarization was in breach of law.

Section 2.  PROCEDURES FOR NOTARIZING CONTRACTS OF MORTGAGE OF REAL PROPERTY, WILLS, AGREEMENTS ON DISTRIBUTION OF INHERITED ASSETS, DOCUMENTS ACKNOWLEDGING RECEIPT OF AN INHERITANCE, DOCUMENTS REFUSING AN INHERITANCE, AND DOCUMENTS ACCEPTING WILLS FOR ARCHIVING

Article 46. Scope of application

The procedures for notarizing contracts of mortgage of real property, wills, agreements on distribution of inherited assets, documents acknowledging receipt of an inheritance and documents refusing an inheritance shall comply with this Section 2 and also with the provisions of Section 1 of this Chapter which are not contrary to Section 2.

Article 47. Notarizing contracts of mortgage of real property

1. A contract for mortgage of real property shall be notarized by the notary of a notary practising organization whose head office is located in the province or city under central authority where such real property is located, except where otherwise stipulated by law.

2. Where several real properties which are located in different provinces and cities under central authority are used in a mortgage to secure the performance of the same single obligation, the notarization of such mortgage contract shall be performed by the notary of a notary practising organization whose head office is located in a province or city under central authority where one of such properties is located.

3. If one item of real property is used in a mortgage to secure the performance of a single obligation and such mortgage contract has been notarized, and thereafter the same property is further mortgaged to secure the performance of another obligation, then to the extent permitted by law, all subsequent mortgage contracts must be notarized by the public notary who notarized the initial mortgage contract. If the public notary who notarized the initial mortgage contract no longer practises, or has transferred to another notary practising organization, or is unable to conduct the notarization, then subsequent mortgage contracts shall be notarized by a notary working for the notary practising organization currently archiving the notarized initial mortgage contract.

Article 48. Notarizing wills

1. A testator must directly apply for notarization of his or her will and shall not be permitted to authorize another person to apply for such notarization.

2. Where a notary suspects that the testator may be suffering from a mental or other disease and therefore cannot be aware of or control his or her acts, or where there is an indication of deceit or that there was a threat or coercion during the making of the will, the notary shall have the right to refuse to notarize the will or, at the request of the applicant, shall conduct verification or seek an assessment.

Where a testator's life is in danger, such applicant for notarization shall not be required to present all of the documents stipulated in article 35.1, but this fact of non-presentation must be specified in the notarized document.

3. In a case where a testator wishes to amend, add to or rescind part or the whole of his or her will, the testator may request any notary to notarize such amendment, addition or rescission. Where such will is currently held by a notary practising organization, the testator must notify such notary practising organization of the amendment, addition to or rescission of his or her will.

Article 49. Notarizing written agreements on distribution of inherited assets

1. Heirs may request notarization of their written agreement on distribution of an inheritance where a will does not specify the share of the inherited assets to which each heir is entitled, or where heirs inherit unspecified shares pursuant to law.

A person entitled to an inheritance may assign the whole of his or her right to such inheritance to another heir in the written agreement on distribution of the inheritance.

2. If an inherited asset is a land use right or another asset for which the law requires ownership to be registered, the applicant for notarization must present documents proving the land use right or ownership of the person who bequeathed the asset.

In a case of inheritance not pursuant to a will but pursuant to law, the applicant for notarization must also present documents proving the relationship between the intestate deceased and the person entitled to such inheritance in accordance with the law on inheritance.

In a case of inheritance pursuant to a will, the applicant for notarization must also present the will.

3. The notary must check that the person bequeathing the asset is the real possessor of the land use right or the owner of the asset and that the applicant for notarization is truly the person entitled to such inheritance. If it is unclear or there are grounds for concluding that the bequeathal was contrary to law or that the claim to the inheritance is contrary to law, the notary shall have the right to refuse to notarize the agreement or, at the request of the applicant, shall carry out verification.

4. A written agreement on distribution of inherited assets which has been notarized shall serve as one of the grounds on which the competent State body shall register an assignment of land use right or of ownership of assets to the persons entitled to such inheritance.

Article 50. Notarizing documents acknowledging receipt of an inheritance

1. A sole person entitled to an inheritance pursuant to law or people jointly entitled to an inheritance pursuant to law who agree not to distribute such inheritance [between themselves] shall have the right to request notarization of a document acknowledging receipt of such inheritance.

2. Notarization of a document acknowledging receipt of an inheritance shall be conducted in accordance with clauses (2), (3) and (4) of article 49 of this Law.

Article 51. Notarizing documents refusing an inheritance

An heir may request notarization of a document refusing an inheritance. Upon making such a request, the applicant must present his or her personal papers.

Article 52. Acceptance of wills for archiving

1. A testator may request a notary practising organization to keep his or her will. Upon agreeing to do so, the notary must seal up the will in front of the testator, make out a receipt for the will and hand the receipt to the testator.

2. Where a will was received for archiving by a notary practising organization which later proposes to terminate its operation or dissolve, then prior to such termination or dissolution the notary practising organization must reach agreement with the testator on arranging for another notary practising organization to receive the will for archiving. If agreement is not reached, the notary practising organization must return the will to the testator together with any fees for archiving.

3. The publication of a will archived by a notary practising organization shall be carried out in accordance with the provisions of the Civil Code.