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NATIONAL
ASSEMBLY
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
82/2006/QH11
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Hanoi,
November 29th, 2006
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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
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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.
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(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
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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;
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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;
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(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.
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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
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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
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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.
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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;
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(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.
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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
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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.
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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
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(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
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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.
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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.
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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.
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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
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(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:
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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.
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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.
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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;
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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.
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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.
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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;
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(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.
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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.
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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.
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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
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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.
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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
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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.
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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.
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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
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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
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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
Nguyen Phu Trong