NATIONAL ASSEMBLY | SOCIALIST REPUBLIC OF VIET NAM |
No. 82/2006/QH11 | Hanoi, November 29th, 2006 |
LAW
ON NOTARIZATION
NATIONAL ASSEMBLY OF THE SOCIALIST REPUBLIC OF VIETNAM
LEGISLATURE XI, 10TH SESSION
(from 17 October to 29 November 2006)
Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam as amended by Resolution 51/2001/QH10 passed by Legislature X of the National Assembly at its 10th Session on 25 December 2001;
This Law regulates notarization.
Chapter I
GENERAL PROVISIONS
Article 1. Governing scope
This Law regulates the scope of notarization, notaries, notary practising organizations, notarization formalities and State administration of notarization.
Article 2. Notarization
Notarization means written certification by a notary of the accuracy and legality of a written contract or other transaction (hereinafter referred to as contract or transaction) which the law stipulates must be notarized or which an organization or individual voluntarily requests be notarized.
Article 3. Principles of notary practice:
1. Compliance with the Constitution and laws.
2. Objectivity and honesty.
3. Legal liability for notarized documents.
4. Compliance with rules on notary practice ethics.
Article 4. Notarized documents
1. A written contract or transaction which has been notarized pursuant to the provisions of this Law shall be called a notarized document.
2. A notarized document shall contain the following:
(a) The contract or transaction;
(b) Testimony of a notary.
3. A notarized document shall take effect from the date it is signed by a notary and sealed by a notary practising organization.
Article 5. Testimony of a notary
The testimony of a notary must specify the time and place of notarization, the full name of the notary, and the name of the notary practising organization; it must certify that the parties to the contract or transaction are participating voluntarily and that they have capacity for civil acts, and that the purpose and contents of the contract or transaction do not breach the law and are not contrary to social morals; that the subject matter of the contract or transaction truly exists, and that the signatures on the contract or transaction are truly the signatures of the parties to the contract or transaction. The testimony must be signed by the notary and sealed by the notary practising organization.
Article 6. Legal validity of notarized documents
1. A notarized document shall be enforceable against all related parties. If the obligor fails to discharge its obligations, the other party shall have the right to petition a Court to resolve the matter in accordance with law, except where otherwise agreed by the parties to the contract or transaction.
2. A notarized document shall be valid as evidence; and the circumstances and facts in a notarized document shall not be required to be proved, except where the Court declares [the notarized document] to be null and void.
Article 7. Notaries
Notary means a person satisfying the criteria stipulated in this Law who is appointed to practise as a notary.
Article 8. Applicants requesting notarization
1. An applicant requesting notarization means a Vietnamese or foreign individual or organization.
A request for notarization by an organization must be made by the legal representative or authorized representative of such organization.
2. An applicant requesting notarization must have capacity for civil acts, and must present all the relevant documents necessary for the notarization and shall be liable for the accuracy and legality of such documents.
Article 9. Witnesses
1. There must be a witness when the law stipulates that notarization must be witnessed; or where there is no such stipulation by law but the applicant requesting notarization can neither read nor hear, or neither sign nor make a fingerprint.
The witness shall be appointed by the applicant requesting notarization, or if the applicant cannot do so then the witness shall be appointed by the notary.
2. A witness must satisfy the following conditions:
(a) Be aged 18 years or more and have full capacity for civil acts;
(b) Not have any asset related rights, interests or obligations regarding the notarization.
Article 10. Spoken and written language to be used in notarization
The spoken and written language to be used in notarization shall be Vietnamese.
Article 11. Responsibilities for State administration of notarization
1. The Government shall conduct uniform State administration of notarization.
2. The Ministry of Justice shall be responsible before the Government for the exercise of State administration of notarization and shall have the following duties and powers:
(a) To prepare policies for development of notarization and submit them to the Government;
(b) To promulgate legal instruments on notarization or to submit legal instruments to the competent State body for promulgation;
(c) To stipulate a framework for notary vocational training and to manage the organization of such training activities; to appoint and dismiss notaries; and [to stipulate] the form of notary cards;
(d) To guide professional notarization activities; to disseminate the law on notarization; to undertake checks and inspections, deal with breaches, and resolve complaints and denunciations about notarization;
(dd) To summarize notarization activities and provide reports thereon to the Government;
(e) To conduct and manage international co-operation in the notarization sector.
3. The Ministry of Foreign Affairs shall be responsible to co-ordinate with the Ministry of Justice in providing guidelines, and inspecting and examining notarization activities by overseas diplomatic representative bodies and consulates of the Socialist Republic of Vietnam (hereinafter all referred to as Vietnam’s representative offices overseas); and in organizing training courses on notarization skills for consulate and diplomatic officials of Vietnam’s representative offices overseas.
4. Ministries and ministerial equivalent bodies shall, within the scope of their respective duties and powers, be responsible to co-ordinate with the Ministry of Justice in exercising State administration of notarization.
5. People’s committees of provinces and cities under central authority (hereinafter referred to as provincial people’s committees) shall exercise State administration of notarization in their localities and shall have the following duties and powers:
(a) To take measures to develop notary practices within their localities to meet the demand for notarization;
(b) To establish and to dissolve a Public Notary Office; to grant approval for establishment of private notary offices; to issue and revoke certificates of operational registration of private notary offices;
(c) To ensure that initial physical facilities and equipment are available for a Public Notary Office;
(d) To conduct checks and inspections; and to settle complaints and denunciations concerning notarization;
(dd) To summarize the status of and statistical data on notarization within their localities, and to report same to the Ministry of Justice.
Article 12. Conduct which is strictly prohibited
1. Notaries shall be strictly prohibited from acting as follows:
(a) Disclosing information or using information about the contract or transaction which such notary notarizes, except where the applicant for notarization consents in writing or except where otherwise stipulated by law;
(b) Causing difficulties for applicants for notarization;
(c) Receiving or demanding any monetary item or other benefit from an applicant for notarization other than the notarization fees, remuneration and other fees which have been fixed and agreed;
(d) Carrying out notarization in a case where the objectives and content of a contract or transaction breach the law or social morals; in a case where such notarization relates to the personal property and interests of the notary or a relative of the notary including a spouse, natural parent, parent-in-law, adoptive parent, natural child, adopted child, grandparent, sibling, sibling of spouse, sibling-in-law, natural grandchild or adopted grandchild.
2. Applicants for notarization shall be strictly prohibited from providing false information and documents.
3. Persons conducting notarization activities shall be strictly prohibited from acting dishonestly.
4. Bodies, organizations and individuals shall be strictly prohibited from taking any act to obstruct notarization activities.
Chapter II
NOTARIES
Article 13. Criteria for notaries
1. A Vietnamese citizen who permanently resides in Vietnam, is loyal to the fatherland, observes the Constitution and laws, has good morals, and who fully satisfies the following criteria shall be considered for appointment as a notary:
(a) Having a bachelor of laws degree;
(b) Having five or more years’ experience doing legal work in a body or organization;
(c) Having a notary vocational training certificate;
(d) Having passed the probationary period for a notary;
(dd) Having good health in order to perform notary duties.
2. The period of time for which a person was trained for notary practice shall be included when calculating the duration of legal work.
Article 14. Notary vocational training
1. Any person with a bachelor of laws degree may enrol in a notary vocational training course at a notary vocational training establishment.
2. A notary vocational training course shall last for six (6) months, and on completion of the course the training establishment shall issue graduation certificates to those who complete the course.
3. The Minister of Justice shall provide regulations on the framework program for notary vocational training courses, and on recognition of notary vocational training overseas.
Article 15. People exempt from undergoing notary vocational training:
1. A person who has been a judge, prosecutor or investigator; a lawyer who has practised for three years or more.
2. A law professor or assistant law professor; a doctor of laws.
3. A person who was a senior examiner in the courts or procuracy; a person who was a senior expert, a senior researcher, or a senior lecturer in the legal sector.
Article 16. Notary practice probation
1. A person who has a graduation certificate from a notary vocational training course shall be permitted to undergo notary practice probation at a notary practising organization. The duration of notary practice probation shall be twelve (12) months from the date of commencement of probation at such organization.
2. A prospective probationer may either directly contact a notary practising organization to arrange probation or else request the Department of Justice to arrange for a notary practising organization to accept the probationer.
3. A notary practice probationer shall carry out all notarization related work assigned by his or her tutoring public notary and shall be responsible to such tutor for such work, but shall not be permitted to sign any notarized document.
Upon expiration of the probationary period, a probationer must provide a written report on the probation results, containing comments of the tutor on the expertise and ethical behaviour of the probationer, to the local Department of Justice where the probation was registered.
Article 17. People exempt from undergoing notary practice probation
The persons exempt from undergoing notary vocational training as stipulated in article 15 of this Law shall also be exempt from undergoing notary practice probation.
Article 18. Appointment of notaries
1. A person who has completed the probationary period shall have the right to request the Department of Justice to appoint him or her as a notary. An application file shall be lodged with the local Department of Justice where the probation was registered, and shall contain the following items:
(a) Request for appointment as a notary;
(b) Copy bachelor of laws or master of laws degree;
(c) Document evidencing duration of experience doing legal work;
(d) Copy graduation certificate on completion of notary vocational training course;
(dd) Report on probation results containing comments of the tutor;
(e) Summarized curriculum vita;
(g) Health certificate.
2. A person who is exempt from undergoing notary vocational training or notary practice probation shall have the right to request the Minister of Justice to appoint him or her as a notary. An application file for appointment as a notary shall be lodged with the Ministry of Justice, and shall contain the following items:
(a) Request for appointment as a notary;
(b) Copy bachelor of laws, master of laws of doctor of laws degree;
(c) Document evidencing entitlement to exemption from undergoing notary vocational training or notary practice probation;
(d) Document evidencing duration of experience doing legal work;
(dd) Summarized curriculum vita;
(e) Health certificate.
3. Within ten (10) working days from the date of receipt of a complete application file, the Department of Justice shall send a written proposal on the appointment of the notary together with the file to the Minister of Justice. In a case of a refusal, written notice must be sent to the applicant specifying the reasons therefor. An applicant who is refused shall have the right to lodge a complaint in accordance with law.
4. Within twenty (20) days from the date of receipt of the complete application file, the Minister of Justice shall issue a decision on the appointment of the notary. In a case of a refusal, written notice must be sent to the applicant and to the Department of Justice specifying the reasons therefor. An applicant who is refused shall have the right to lodge a complaint in accordance with law.
The Minister of Justice shall issue notary cards to persons appointed as notaries.
Article 19. Persons ineligible to be appointed as notaries:
1. A person who is currently subject to criminal prosecution; a person who was convicted of a non-intentional crime for which the police record has not yet been expunged; a person who was convicted of a deliberate crime.
2. A person who is currently subject to application of another administrative measure pursuant to the law on dealing with administrative offences.
3. A person whose capacity for civil acts is lost or restricted.
4. Any civil servant or State official who was dismissed from his or her position.
5. A person whose legal practising certificate was revoked by way of disciplinary penalty in the form of removal as a member of a bar association or withdrawal of the right to use such legal practising certificate.
Article 20. Dismissal of notaries
1. A notary may be relieved of his or her duties upon his or her voluntary application or upon secondment to another job.
2. A notary shall be dismissed in the following circumstances:
(a) When he or she no longer satisfies the criteria for appointment as a notary stipulated in article 13 of this Law;
(b) If his or her capacity for civil acts is lost or restricted;
(c) If he or she concurrently has another job;
(d) If he or she fails to conduct notary practice for two years from the date of appointment as a notary or for a period of twelve consecutive months;
(dd) If he or she has been subject to an administrative penalty for a second time regarding notarization activities and continues such breach, or has been disciplined by way of a warning for a second time and continues such breach, or has been disciplined by way of compulsory resignation.
(e) If he or she has been indicted pursuant to an effective court judgment.
3. The Minister of Justice, either on his own discretion or at the request of the Department of Justice where a notary practices or of the Department of Justice where a notary was appointed, may issue a decision on dismissal of the notary.
The file requesting dismissal of the notary in a case referred to in clause 1 of this article shall include an application from the notary and an official letter of request from the local Department of Justice.
The file requesting dismissal of the notary in a case referred to in clause 2 of this article shall include an official letter of request from the local Department of Justice and other relevant documents serving as the grounds for such request.
4. Within ten (10) working days from the date of receipt of a file requesting dismissal of a notary, the Minister of Justice shall issue a decision dismissing the notary and a decision revoking the notary’s card.
Article 21. Temporary suspension of notary practice
1. The Department of Justice shall temporarily suspend the notary practice of a notary in any one of the cases referred to in articles 20.2(a), (b), (c), (d) and (dd) of this Law or when a notary is criminally prosecuted or subject to another administrative penalty pursuant to the law on dealing with administrative offences.
2. The Department of Justice shall rescind its decision on temporary suspension of the notary practice of a notary in the following circumstances:
(a) When the notary no longer falls within one of the cases referred to in articles 20.2(a), (b), (c), (d) and (dd) of this Law;
(b) When there is a decision suspending investigation or suspending the court case, or when the notary is found to be not guilty pursuant to an effective court judgment;
(c) When the public notary is no longer subject to another administrative penalty pursuant to the law on dealing with administrative offences.
3. A decision temporarily suspending the notary practice of a notary and a decision cancelling the former decision shall be sent to the notary, to the notary practising organization where such notary works, to the provincial people’s committee and to the Ministry of Justice.
Article 22. Rights and obligations of notaries
1. Notaries shall have the following rights:
(a) To select the location of his or her practice, except in the case of notaries working in a Public Notary Office;
(b) To request individuals, bodies and organizations concerned to supply information and data relevant to the notarization purpose;
(c) Other rights pursuant to this Law.
2. Notaries shall have the following obligations:
(a) To comply with the principles of notary practice;
(b) To respect and protect the legitimate rights and interests of applicants for notarization;
(c) To maintain confidentiality of all items which are notarized, except where the applicant for notarization provides written consent or except where the law stipulates otherwise;
(d) To practise at one notary practising organization.
Chapter III
NOTARY PRACTISING ORGANIZATIONS
Article 23. Forms of notary practising organizations:
1. Public Notary Offices.
2. Private notary offices.
Article 24. Public Notary Offices
1. A Public Notary Office shall be established pursuant to a decision of a provincial people’s committee.
2. A Public Notary Office shall have its own head office, seal and bank account and shall be a professional unit under the Department of Justice.
The legal representative of a Public Notary Office shall be the head of such Public Notary Office. The head of a Public Notary Office shall be a notary who is appointed by the chairman of the provincial people’s committee.
The Government shall provide specific regulations on the financial regime and seals of Public Notary Offices.
3. The name of a Public Notary Office shall include a number referring to the consecutive date order of its establishment, and also the name of the province or city under central authority where such Office was established.
Article 25. Establishment of Public Notary Offices
1. The Department of Justice shall prepare a plan for establishment of Public Notary Office/s on the basis of the local notarization needs, and submit such plan to the provincial people’s committee for its consideration and decision. The plan shall specify the necessity for establishment, the proposed organizational structure, personnel, location of office, and conditions regarding physical facilities of the Public Notary Office; together with an implementation plan.
2. Within thirty (30) days from the date of a decision on establishment of a Public Notary Office, the Department of Justice shall publish the following details in three consecutive issues of a central or local daily newspaper:
(a) Name and address of the Public Notary Office;
(b) Serial number and date of the establishment decision, and date of commencement of operation of the Public Notary Office.
3. If the provincial people’s committee decides to change the name or office location of a Public Notary Office, the Department of Justice shall publish such changes in accordance with clause 2 of this article.
Article 26. Private notary offices
1. A private notary office shall be established by one or more notaries.
A private notary office established by one notary shall be organized and operate in the form of a private enterprise. A private notary office established by two or more notaries shall be organized and operate in the form of a partnership.
The legal representative of a private notary office shall be the head of such private notary office. The head of a private notary office shall be a notary.
2. A private notary office shall have its own head office, seal and bank account and shall operate on the principle of financial self-control by using contributions from notaries, notarization remuneration and other legitimate income.
The Government shall provide specific regulations on the seals of private notary offices.
3. The name of a private notary office shall be selected by the notary or notaries but must contain the phrase “Notary Office” and must not be identical to or cause confusion with the name of other registered notary practising organizations; and must not contain any words or symbols in breach of the historical and cultural traditions and ethics of the Vietnamese people.
Article 27. Establishment and operational registration of private notary offices
1. A notary or notaries who wish to set up a private notary office must prepare a file and send it to the provincial people’s committee. A file shall comprise the following:
(a) An application for establishment of a private notary office;
(b) A plan for establishment of the private notary office specifying the necessity for its establishment and the proposed organizational structure, personnel, head office and other conditions regarding physical facilities of the private notary office; together with an implementation plan;
(c) Copies of decisions on appointment of the notary or notaries.
2. The provincial people’s committee shall make a decision approving establishment of a private notary office within twenty (20) working days from the date of receipt of a complete file requesting such establishment. In a case of a refusal, a written notice must be served specifying the reason, and an applicant whose request is refused shall have the right to lodge a complaint in accordance with law.
3. The private notary office must register its operation with the Department of Justice in the locality in which it is permitted to operate within ninety (90) working days from the date of receipt of the decision approving its establishment. In order to register its operation, the private notary office must provide an application for operational registration and a document evidencing it has a head office in the locality where it is permitted to operate.
The Department of Justice shall issue a certificate of registered operation within fifteen (15) days from the date of receipt of the relevant documents requesting registration. In a case of a refusal, a written notice must be served specifying the reason, and an applicant whose request for registration is refused shall have the right to lodge a complaint in accordance with law.
A private notary office shall only be permitted to commence operation after a certificate of registered operation has been issued by the Department of Justice.
4. The Department of Justice shall revoke the certificate of registered operation of any private notary office which fails to operate within six (6) months of the date of issuance of such certificate or which fails to operate for a period of three consecutive months.
5. The provincial people’s committee shall revoke the decision approving establishment of the private notary office of any private notary office which fails to register its operation within ninety (90) working days from the date of receipt of such decision or whose certificate of registered operation is revoked.
Article 28. Change of registered operational contents of a private notary office
A private notary office must send a written notice to the Department of Justice where its operation is registered if such office changes its head office, the list of its notaries or the names on such list.
A private notary office shall be re-issued with its certificate of registered operation if such office changes its head office or its name.
Article 29. Disclosure of information about registered operational contents
The Department of Justice shall, within ten (10) working days from the date of issuance or re-issuance of a certificate of registered operation as a result of a change of head office or name of the private notary office, send written notice thereof to the provincial tax office, statistical office and police office, and to the people’s committee of the district, town or provincial city, and to the people’s committee of the commune, ward or township where the head office of such private notary office is located.
Article 30. Publication of registered operational contents of private notary offices
1. A private notary office must publish the following details in three consecutive issues of a central or local newspaper within thirty (30) days from the date of issuance of its certificate of registered operation:
(a) Name and head office address of the private notary office;
(b) Full names of the notaries and serial numbers of the decisions appointing them to practise in the private notary office;
(c) Serial number and date of issuance of the certificate of registered operation, the location where the operation was registered and the date of commencement of operation.
2. In a case of re-issuance of a certificate of registered operation as a result of a change of head office or name, a private notary office must publish the registered operational contents set out in the reissued certificate in accordance with clause 1 of this article.
Article 31. Rights of notary practising organizations:
1. To recruit staff to work for the organization.
2. To collect notarization fees and remuneration and other fees.
3. Other rights stipulated in this Law and other relevant laws.
Article 32. Obligations of notary practising organizations:
1. To display at the head office the working days and hours, notarization procedures, notarization fees and remuneration, and internal rules on receiving applicants for notarization.
2. To follow the working days and hours of State administrative bodies.
3. To comply with the law on labour, tax, finance and statistics.
4. To comply with requests from competent State bodies concerning reports, checks and inspections.
5. To pay damages for loss caused by a notary of the notary practising organization to any applicant for notarization.
6. To archive notarization files.
7. To purchase professional indemnity insurance for the notaries of the notary practising organization.
8. Other obligations stipulated in this Law and other relevant laws.
Article 33. Dissolution of Public Notary Offices
1. Where it is deemed unnecessary to maintain a Public Notary Office, the Department of Justice shall prepare a plan for dissolution of such Office and report it to the provincial people’s committee for the latter’s consideration and decision.
A Public Notary Office shall only be dissolved after all its liabilities have been settled, after procedures for termination of labour contracts with employees have been completed, and after all previously accepted requests for notarization have been performed.
2. The Department of Justice shall publish notice of dissolution in three consecutive editions of a central or local newspaper within fifteen (15) days from the date of issuance of a decision by the provincial people’s committee to dissolve a Public Notary Office.
Article 34. Termination of operation of a private notary office
1. The operation of a private notary office shall be terminated in the following circumstances:
(a) Upon voluntary termination.
(b) Upon revocation of its certificate of registered operation due to a breach of law by the private notary office, or if such office no longer has a notary as a result of dismissal.
2. In a case of termination pursuant to clause 1(a) of this article, the private notary office must report in writing to the Department of Justice where its operation was registered, at least thirty (30) days prior to the proposed date of termination.
The private notary office shall be liable to settle all of its liabilities, to complete procedures to terminate labour contracts with its employees, to perform all previously accepted requests for notarization, and to publish the proposed date of termination of its operation in three consecutive issues of a local or central newspaper.
The Department of Justice shall provide a written report on the termination of operation of the private notary office to the bodies stipulated in article 29 of this Law.
3. In a case of termination pursuant to clause 1(b) of this article, the Department of Justice shall provide a written report on such termination to the bodies stipulated in article 29 of this Law within seven (7) working days from the date of revocation of the certificate of registered operation.
The private notary office shall be liable to settle all of its liabilities, to complete procedures to terminate labour contracts with its employees, to return files to applicants in the case of accepted requests for notarization which remain uncompleted, and to publish notice of termination of its operation in three consecutive issues of a local or central newspaper.
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.
Chapter V
ARCHIVING NOTARIZATION FILES
Article 53. Notarization files
1. A notarization file shall contain the application for notarization of the contract or transaction, the original of the notarized document, copies of the papers presented by the applicant, documents regarding any verification or assessment, and other relevant documents.
2. Each notarization file must be numbered corresponding to the time it is recorded in the notarization register.
Article 54. System for archiving notarization files
1. Notary practising organizations must strictly preserve, and take appropriate security measures for their notarization files.
2. The original of a notarized document must be kept for at least twenty (20) years, and other documents in a notarization file must be kept for at least five (5) years.
3. Where a competent State body makes a written request for the supply of a notarization file to facilitate supervision, a check or inspection, an investigation, prosecution, trial or enforcement of a judgment relating to the matter which was notarized, the notary practising organization shall be responsible to supply a copy of the notarized document and other relevant documents. Any comparison of the copy of a notarized document with the original shall only be carried out at the premises of the notary practising organization currently holding such file.
4. Where a Public Notary Office is dissolved, its notarization files must be handed over to another Public Notary Office or private notary office as designated by the Department of Justice.
Where a private notary office terminates its operation, it must enter into an agreement with another private notary office on handover of its notarization files. If such an agreement is not reached, this must be reported to the Department of Justice so that it can designate a Public Notary Office or another private notary office to receive the notarization files.
Article 55. Provision of duplicates of notarized documents
1. Duplicates of a notarized document shall be provided in the following circumstances:
(a) Upon request by a competent State body in any of the circumstances referred to in article 54.3 of this Law;
(b) Upon request by any party to the notarized contract or transaction or by a person with related rights and interests to such notarized document.
2. Duplicates of a notarized document shall be provided by the notary practising organization currently holding the original of such notarized document.
Chapter VI
NOTARIZATION FEES AND REMUNERATION
Article 56. Notarization fees
1. Notarization fees shall comprise fees for notarization of contracts and transactions, fees for archiving wills, and fees for providing duplicates of notarized documents.
An applicant for notarization of a contract or transaction, for archiving a will or for provision of a duplicate of a notarized document must pay notarization fees.
2. Fee rates and the system for collection, payment, management and use of notarization fees shall be implemented in accordance with law.
Article 57. Notarization remuneration and other expenses
1. An applicant for notarization must pay remuneration when requesting a notary practising organization to prepare a contract or transaction, or to type, photocopy or to do other things relating to the notarization.
2. If an applicant for notarization requests verification or assessment, or for notarization to take place outside the head office of the notary practising organization, then the applicant must bear the costs thereof.
3. The rates of remuneration for each type of work referred to in clause 1 of this article shall be stipulated by the notary practising organization.
The levels of costs referred to in clause 2 of this article shall be as agreed upon by the applicant for notarization and the notary practising organization.
Chapter VII
DEALING WITH BREACHES, COMPLAINTS AND DENUNCIATIONS, RESOLUTION OF DISPUTES
Article 58. Dealing with breaches by public notaries
Any notary who breaches the provisions of this Law shall, depending on the nature and seriousness of the breach, be disciplined, subject to an administrative penalty or be prosecuted for criminal liability; and if the breach causes loss, the notary must pay compensation in accordance with law.
Article 59. Dealing with breaches by notary practising organizations
Any notary practising organization which breaches the provisions of this Law shall, depending on the nature and seriousness of the breach, be subject to an administrative penalty in accordance with the law on dealing with administrative offences; and if the breach causes loss, the notary practising organization must pay compensation in accordance with law.
Article 60. Dealing with breaches being an infringement of legitimate rights and interests of notaries or notary practising organizations
Any person in a position of authority who commits an act infringing the legitimate rights and interests of a notary or notary practising organization, or who obstructs a notary or notary practising organization from exercising rights or performing obligations shall, depending on the nature and seriousness of the breach, be disciplined or prosecuted for criminal liability; and if such act causes loss, the offender must pay compensation in accordance with law.
Article 61. Dealing with breaches being illegal conduct of notary practice
1. Any individual who is ineligible for notary practice but still practises as a notary in any form must promptly terminate such practice, and shall be subject to an administrative penalty in accordance with the law on dealing with administrative offences or be prosecuted for criminal liability; and if such conduct causes loss, the offender must pay compensation in accordance with law.
2. Any organization which is ineligible for notary practice but still practises as a notary organization in any form must promptly terminate such practice, and shall be subject to an administrative penalty in accordance with the law on dealing with administrative offences; and if such conduct causes loss, the organization must pay compensation in accordance with law.
Article 62. Dealing with breaches by applicants for notarization
Any applicant for notarization who changes a document or who uses false documents when making such request shall, depending on the nature and seriousness of the breach, be subject to an administrative penalty in accordance with the law on dealing with administrative offences or be prosecuted for criminal liability; and if such act causes loss, the offender must pay compensation in accordance with law.
Article 63. Complaints
An applicant for notarization shall have the right to complain about a refusal to notarize on the grounds that such refusal is contrary to law or violates his or her legitimate rights and interests.
The head of a Public Notary Office or the head of a private notary office shall be responsible to deal with any such complaint within three working days from the date of receipt of such complaint. If an applicant disagrees with the decision resolving the complaint by the head of such Public Notary Office or private notary office, the complainant shall have the right to lodge a further complaint with the director of the Department of Justice; and the director of the Department of Justice shall provide a response thereto within five working days from the date of receipt of such further complaint.
Article 64. Dispute resolution
In the case of a dispute between an applicant for notarization and a notary or notary practising organization regarding professional notary practice, the parties shall have the right to initiate proceedings with the court in order to resolve such dispute.
Chapter VIII
IMPLEMENTING PROVISIONS
Article 65. Notarization by Vietnam’s representative offices overseas
1. Vietnam’s representative offices overseas shall have the right to notarize contracts and transactions in accordance with the provisions of this Law and the law on consulates and diplomatic offices, but shall not notarize contracts for the sale and purchase, exchange, assignment, donation, lease or mortgage of real property; contracts for capital contribution by real property; written agreements on distribution of inherited assets; or documents acknowledging receipt of inheritance being real property.
2. Any consul or diplomat who is assigned to conduct notarization must have a bachelor of laws degree or must have received training in notarization.
3. Consuls and diplomats shall conduct notarization in accordance with the provisions in Chapter IV of this Law, and shall have the rights stipulated in sub-clauses (b) and (c) of article 22.1 and the obligations stipulated in sub-clauses (a), (b) and (c) of article 22.2 of this Law.
Article 66. Transitional provisions
1. Any person who is currently a notary shall be permitted to continue practising as a notary in accordance with this Law.
2. All Public Notary Offices currently operating pursuant to Decree 75-2000-ND-CP of the Government dated 8 December 2000 on notarization and authentication must convert to operation pursuant to this Law within six (6) months from the effective date of this Law.
The Ministry of Justice shall preside over co-ordination with other ministries and ministerial equivalent bodies in providing guidelines for conversion of Public Notary Offices.
3. All Public Notary Offices currently holding notarization files shall continue to archive them pursuant to this Law. The duration for archiving notarization files shall be calculated as from the effective date of this Law.
Article 67. Effectiveness
This Law shall be of full force and effect as from 1 July 2007.
This Law was passed by Legislature XI of the National Assembly of the Socialist Republic of Vietnam at its 10th Session on 29 November 2006.
THE CHAIRMAN OF THE NATIONAL ASSEMBLY |