中国的公证制度（英）

　　Public Notary 1 System

Public notaries 2 are persons accredited 3 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 5, notarize legal acts and the truthfulness 7 and legality of legal documents and facts in order to protect public property and safeguard the lawful 8 rights and interests of citizens. Since October 1, 2000, the Ministry 9 of Justice has implemented 10 a plan to reform the notary system. Under the new scheme, public notary offices are no longer administrative 11 bodies; rather, they are non-profit entities 12 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 13 counties）, and cities. Subject to approval from judicial 14 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 15 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 16 of signatures and seals on certificates, consistency 17 of copies of certificates, excerpts 18, translations and photocopies 19 with the originals;

· Notarize the enforceability of creditor 20 documents such as repayment 21 agreements and contracts on recovery of debts;

· Auxiliary 22 business, such as preservation 23 of evidence, maintenance of wills or other documents, drafting notary documents on behalf of clients, notarizing the opening of lottery 24 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 26 for enforcement.

· Legality. This means certain legal acts take effect and become legally binding 27 only after they are notarized. These include adoption of children and marriage registration 28 between Chinese citizens and foreigners.

· Extraterritoriality. Notarized documents are legally valid 25 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 29 by the Chinese Foreign Ministry and Foreign Affairs Offices of the provinces, autonomous regions and municipalities or foreign embassies or consulates 30 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 4 to go to the public notary office in person, citizens or legal persons can authorize 31 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 32 with a signature or seal. Applications should come with other supporting documentation such as ID, letter of authorization 33, 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 34 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 35 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 36 bids. In such cases, public notaries should be at the scene themselves and read a public notary statement regarding what is truthful 6 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 37 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.