Nghị định 04/2013/NĐ-CP hướng dẫn Luật Công chứng

THE GOVERNMENT

Decree No. 04/2013/ND-CP dated January 07, 2013 detailing and guiding the implementation of some Articles of the Law on Notarization

Pursuant to the Law on Government organization dated December 25th 2001;

Pursuant to the Law on Notarization dated November 29th 2006;

At the proposal of the Minister of Justice;

The Government issues a Decree detailing and guiding the implementation of a number of articles of The Law on Notarization,

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree details and guides the implementation of a number of articles of the Law on Notarization applicable to notaries, their activities and the State management of notarization.

Chapter 2.

NOTARIES

Article 2. The practice of notaries

Notaries only do their assigned jobs; do not concurrently take other jobs, do not concurrently hold the judicial titles such as lawyers, auctioneers, arbitrators, bailiffs, or other judicial titles

Article 3. Training notaries

1. The practicing notaries are responsible for attending the annual training courses. The shortest training duration is 03 days. The training includes the update of law regulations on notarization, the relevant laws, and the skills in notarizing contracts and transactions.

The notaries that finish the courses shall receive certificates.

2. The practicing notaries that do not the annual training courses shall be liable disciplinary actions, administrative penalties, or other forms of penalties as prescribed by law or the charter of their organization.

3. The Minister of Justice shall guide the organization of training courses for notaries as prescribed in Clause 1 and Clause 2 this Article.

Article 4. Appointing the retired or resigned officials as notaries

1. When a retired or resigned official wishes to be appointed as a notary to work as a private notary office, his or her application for the job must be enclosed with the papers proving the retirement or resignation.

2. A notary of a public notary office that has resigned or retired for under a year, he or she may still hold the notary title, and may open a private notary office or participate in an existing private notary office. Within 01 year from the date on which the decision on the retirement or resignation is made until the date on which the application for the establishment of the private notary office is submitted, or the date on which he or she is accepted as a partner of the private notary office, or the date on which the labor contract is signed with the private notary office.

When a notary who has retired or resigned over a year wished to work as a notary, he or she must follow the procedure for appointing notaries.

Article 5. The conditions for working as notaries, applicable to the lawyers being appointed as notaries

1. When a lawyer appointed as a notary applies for the establishment of a private notary office, or registers the partnership with a private notary office, or signs a labor contract with a private notary office, the President of the bar association must certify the resignation of that lawyer from the bar association, and provide the papers proving the resignation of that lawyer.

2. The resignation of a lawyer is proven by one of the following papers:

a) The written certification of the submission of the certificate of lawyer registration to the agency that issued that certificate, applicable to the independent lawyers;

b) The written certification of the submission of the certificate of registration of the lawyer office or the single-member limited company to the agency that issued such certificate, applicable to the lawyers that establish lawyer offices or single-member limited companies;

c) The written certification of the resignation from the list of members of the law partnership or the law firm established by two members or more, applicable to the lawyers being their members of law partnerships or founding members of the law firms established by two members or more;

c) The written certification of the resignation of the membership of the single-member limited law firm or the limited law firm established by two members or more, applicable to the lawyers that contribute capital to single-member limited law firms or limited law firms established by two members or more;

dd) The written certification of the termination of the labor contract signed with the law-practicing organization, applicable to the lawyers working under the labor contracts signed with law-practicing organizations.

Article 6. Dismissing notaries

1. Notaries shall be dismissed in the cases prescribed in Clause 1 and Clause 2 Article 20 of the Law on Notarization. The order and procedure for dismissing notaries are provided in Clause 3 and Clause 4 Article 20 of the Law on Notarization.

2. The dossier of application for dismissing notaries shall be submitted directly at the Ministry of Justice or by post. Its cover says “Application for notary dismissal”.

3. The Minister of Justice shall decide the revocation of notary cards of the dismissed notaries. The order and procedure for revoking notary shall be are guided by the Minister of Justice.

Chapter 3.

THE NOTARY OFFICE AND OPERATION

Article 7. The establishment of notary offices

1. The establishment of notary offices, including public notary offices and private notary offices must comply with the master plan for the development of notary offices approved by the Prime Minister.

2. Encouraging the establishment of private notary offices. Only establish a public notary office if the establishment of a private notary office is impossible. The People’s Committees of the following central-affiliated cities and provinces (hereinafter referred to as provincial People’s Committees) shall facilitate and support the establishment and development of private notary offices at the localities that suffer from difficulties.

3. The establishment of notary offices, including public notary offices and private notary offices must comply with the master plan for the development of notary offices approved by the Prime Minister. The applications must be openly examined, in accordance with the master plan. The development of private notary offices with plenty of sufficient notaries and employees are encouraged.

Article 8. The registration of private notary offices

1. The registration of private notary offices is specified in Clause 3 Article 27 of the Law on Notarization.

The application registration of a private notary office includes:

a) The written registration according to the set form;

b) The papers proving that the premises of the private notary office satisfy the conditions prescribed in Article 9 of this Decree;

The premises are leased or lent, the dossier must be enclosed with a lease or lending contract that lasts at least 5 year from the date of the registration of the private notary office;

c) The papers showing the permanent residence at a central-affiliated city or province where the private notary office is situated.

2. The dossier shall be submitted directly to the Service of Justice or by post. Its cover says “Registration of private notary office”.

Article 9. Conditions for the premises of private notary offices

1. The private notary office must have separate premises with a specific address, with offices for notaries, employees, waiting lounges, and file storage.

2. The notary that establish the private notary office only submits the papers proving the premises of the private notary office as prescribed in Clause 1 this Article when registering the private notary office.

The Services of Justice shall inspect the conformity with the conditions for the premises of private notary offices during their registration.

3. The change of the premises of private notary office prescribed in Article 28 of the Law on Notarization must be conformable with the master plan for the development of notary offices approved by competent agencies at district level where the private notary office is situated.

The private notary office must send a written notice to the Service of Justice where its operation is registered when it wishes to move. Within 07 working days, the Service of Justice shall consider and reissue the certificate of private notary office registration.

Article 10. Changing the list of notaries being partners of a private notary office established by at least two notaries

1. Within 05 working days from the date on which the list of notaries being partners is changed as prescribed in Article 28 of the Law on Notarization, the private notary office must send a written notice to the Service of Justice where its operation is registered, enclosed with the original certificate of private notary office registration, the authenticated copy of the decision on appointing notaries, the papers proving the permanent residences of notaries in the central-affiliated cities and provinces where the operation is registered.

2. Within 07 working days from the date on which the papers prescribed in Clause 1 this Article are received, the Service of Justice shall record the change of the list of notaries being partners of the private notary office on the Certificate of private notary office registration.

Article 11. Notaries working for private notary offices under contracts

1. Private notary offices may sign labor contracts with notaries. While working under contracts at a private notary office, a notary may not work as a notary at another notary office.

2. Within 05 working days from the date on which the labor contract with the notary is signed, the private notary office must register the list of notaries working under contracts with the Service of Justice where the establishment of the private notary office is registered.

The dossier on the registration of the list of notaries working under contracts includes:

a) The written notice made by the private notary office about the admission of notaries working under contracts, including the information about them, such as their names, dates of birth, residences, the commitment of the private notary office on buying professional liability insurance for their notaries, and the sample signatures of notaries.

b) The labor contracts signed by the private notary office and notaries.

c) The decisions on appointing notaries working under contracts for the private notary office;

d) The papers proving the resignation from the bar association, and the termination of the lawyer’s practice of the lawyers appointed as notaries, or the papers proving the return of the practice certificates or cards to the competent agencies, applicable to the people issued with such practice certificates or cards;

The dossier shall be made in 01 set. The papers in the dossier are the copies enclosed with the original for comparison if the dossier is submitted directly at the Service of Justice; if the dossier is sent to the Service of Justice by post, the papers contained therein must be authenticated copies.

3. Within 07 working days from the date on which the complete and valid dossier is received, the Service of Justice where the private notary office registers its establishment shall consider and send written notification to the private notary office. The notaries working under contracts for the private notary office may sign the notarized documents after receiving the notification from the Service of Justice..

4. The notaries working under contracts for the private notary office have the rights, duties, and responsibilities prescribed by the laws on notaries.

5. When a labor contract with a notary is terminated, within 05 working days from the date on which the contract is terminated, the private notary office must send a written notification about the contract termination to the Service of Justice where the establishment is registered.

Notaries may not sign notarized documents from the date on which the labor contract with the private notary office is terminated.

Article 12. Conversion of private notary offices

1. A private notary office established by a notary may be converted into a private notary office in the form of a partnership. The dossier of application for the conversion shall be submitted to the provincial People’s Committee.

2. The dossier includes:

a) The plan for converting the private notary office, specifying the reasons, the conversion time, the financial statement, and the operation by the day when the conversion is applied, the expected structure, name, location, personnel, and facilities.

b) The authenticated copies of the decisions on appointing notaries being partners of a private notary office;

c) The original Decision on the establishment of the past private notary office.

The dossier of application for the conversion of the private notary office shall be submitted directly to the Service of Justice or by post.

3. Within 05 working days from the date on which the complete and valid dossier prescribed in Clause 2 this Article is received, the Service of Justice shall request the provincial People’s Committee to consider and permit the conversion of the private notary office. The refusal must be notified and explained in writing. The applicant may make complaints as prescribed by law.

4. Within 10 working days from the date on which the request from the Service of Justice is received, the provincial People’s Committee to consider and permit the conversion of the private notary office. The refusal must be notified and explained in writing. The applicant may make complaints as prescribed by law.

5. Within 05 working days from the date on which the permission for the conversion is received, the private notary office must register its operation at the local Service of Justice. The dossier of registration of the operation includes:

a) The written registration according to the set form;

b) The authenticated copy of the permission for the conversion of the private notary office;

c) The papers proving the premises of the local authority if the change of the location is permitted.

Within 07 working days from the date on which the complete dossier of registration is received, Services of Justice shall issue the certificate of registration to the converted private notary office. The refusal must be notified and explained in writing. The applicant may make complaints as prescribed by law.

6. The private notary office may proceed its operation during the procedure for the conversion and registration.

The converted private notary office may commence its operation from the date on which the certificate of registration is issued by the Service of Justice, inherit all the rights, obligations, and shall keep all the notarization documents of the past private notary office.

Article 13. Suspending the operation of private notary offices

1. The operation of a notary office shall be suspended in the following cases:

a) The only notary or all notaries being partners of the notary office is suspended from practice;

b) Other cases where the conditions for notarizing are not satisfied as prescribed by law.

2. The Service of Justice where the private notary office is situated shall make decision on suspending the private notary office in the cases prescribed in Clause 1 of this Article.

3. The maximum suspension duration is 3 months. During the suspension, the private notary office must pay the tax debts, order debts, and complete the execution of signed contracts with employees, unless otherwise agreed.

The documents notarized by the private notary office shall still be kept at this private notary office.

4. If a person request the copies of the notarized documents, the correction of technical errors, the amendment, supplementation, or termination of the contracts and transactions notarized at the suspended private notary office, the Service of Justice appoint another notary office or a notary to satisfy such requests. The appointed notary may refuse to satisfy the request in the cases prescribed in Clause 4 and Clause 5 Article 35 of the Law on Notarization, and other cases prescribed by law. The appointed notary office and appointed notary shall be responsible for their assigned jobs.

5. The Director of the suspended private notary office shall sent the documents to serve the notarization of the documents requested by that person as prescribed in Clause 4 this Article.

After the suspension, the documents notarized by another notary office during the suspension shall be handed over to the suspended private notary office.

The handover of notarized documents must be recorded in writing, and the record must be signed by a representative of the Service of Justice.

Article 14. Revoking the certificate of registration of a private notary office

1. The certificate of registration of a private notary office shall be revoked in the following cases:

a) The private notary office fails to commence its operation for 6 months from the date on which the certificate of registration is issued, or the private notary office does not operate for consecutive 3 months or more;

b) There is not notary in the private notary office because the notary being the Director of the private notary office established by a notary, or all partners of the private notary office established by two or more notaries are dismissed or dead.

c) Other cases prescribed by law.

2. The Service of Justice shall make the decision on revoking the certificate of registration of the private notary office within 07 working days from the day on which one of the cases in Clause 1 of this Article occurs.

The Service of Justice shall notify the revocation of the Certificate of registration of private notary office to the agencies prescribed in Article 29 of the Law on Notarization.

Article 15. Shutting down private notary offices

1. A notary office shall be shut down in the following cases:

a) The office shuts down itself;

b) The certificate of registration of the private notary office is revoked in the cases prescribed in Clause 1 Article 14 of this Decree.

c) The Director of the private notary office established by a notary dies.

2. The procedure for shutting down a private notary office:

a) The shutdown of a private notary office in the cases prescribed in Point a Clause 1 of this Article is specified in Clause 2 Article 34 of the Law on Notarization. The Service of Justice shall revoke the certificate of registration of the private notary office within 07 working days from the date on which the private notary office is shut down.

The shutdown of a private notary office in the cases prescribed in Point b and Point c Clause 1 of this Article is specified in Clause 3 Article 34 of the Law on Notarization.

b) The Service of Justice shall appoint another notary office to receive the documents from the shut down private notary office within 30 days from the date on which that private notary office is shut down;

c) The settlement of the financial obligations and rights (if any) arising from the shutdown of the private notary office shall comply with the civil laws and other relevant laws.

3. The Service of Justice shall request the provincial People’s Committee to revoke the decision on the permission for the establishment of the private notary office when it is shut down as prescribed in Clause 1 of this Article.

Article 16. Developing the database and providing information about the contracts and transactions relevant to the notarized real estate

1. The contracts and transactions related to the notarized real estate must be digitized and gathered at the Services of Justice to serve the provision of information for notary offices.

The provincial People’s Committees shall direct the development of the database about the contracts and transactions related to the notarized real estate, issue the regulation on the use and provision of such information among the local notary offices, and provide information to the notary office in other central-affiliated cities and provinces at their request.

2. The land tenancy registration offices affiliated to the Services of Natural Resources and Environment, the land tenancy registration offices affiliated to the Departments of Natural Resources and Environment of districts, towns, and provincial cities where the land and the property attached thereto are situated, in case the land tenancy registration offices are not established, shall provide the information about land at the request of notary offices in order to serve the notarization of the contracts and transactions relevant to real estate.

3. The Ministry of Natural Resources and Environment shall cooperate with the Ministry of Justice and the Ministry of Construction in issuing the Regulation on the provision of information about real estate between the agencies in charge of the registration of the rights to use land and house ownership, and the notary offices.

Article 17. The authority to notarize contracts and transactions relevant to real estate in industrial parks, economic zones, and hi-tech zones

Notaries of notary offices may notarize the contracts and transactions relevant to real estate as prescribed in Article 37 of the Law on Notarization, including the contract for the transfer, lease, and sublease of land tenancy, for the mortgage and contribution from land tenancy in industrial parks, economic zones, and hi-tech zones in central-affiliated cities and provinces where the notary offices are situated.

Article 18. Notarizing authorization contracts

1. The authorization having wages and responsibility to pay compensation of the authorized party or for transferring the ownership of tenancy of real estate must be made into a authorization contract. When notarizing the authorization contracts relevant to real estate, the notaries must carefully examine the dossier; explain the rights and obligations of the parties, and the legal consequences of such authorization to the parties.

2. If the authorized party and the authorizing party fail to go to the same notary office, the authorizing party shall request the notary office where they reside to notarize the authorization contract. The authorized party may request the notary office where they reside to notarize that original authorization contract, and complete the notarization of the authorization contract.

Article 19. Announcing the agreements on the division of inheritance, declaration of inheritance

1. The notarization of written agreements on the division of inheritance, or the notarization of the declaration of inheritance (hereinafter referred to as documents) must be announced within 15 days. The notary office shall announcement shall be made at the People’s Committee of the commune where the giver resides. If the residence is not identifiable, the announcement shall be made at his or her latest temporary residence.

If the inheritances are located in multiple localities, the announcement shall be made at the People’s Committees of the communes where the inheritances are located.

If the inheritance includes both real estate and movables, or only includes real estate, the announcement shall be made as guided above; If the both locations are not identifiable, the announcement shall be made at the People’s Committees of the communes that have the real estate of the giver.

When the inherence is only real estate, if the premises of the notary office and the permanent or latest temporary residence of the giver are not located in the same city or province, then the notary office may request the People’s Committee of the commune where the permanent or latest temporary residence is located to make the announcement

2. The announcement must specify the full name of the giver, the full names of the people that conclude the agreement on the division, or the people that make the declaration of the inheritance, the relationship between the people that conclude the agreement on the division or make the declaration of the inheritance and the giver; and the list of inheritance. The documents posted must specify that the complaints or accusation of the omission of exclusion of inheritors or inheritances that are not under the ownership or tenancy of the giver shall be sent to the notary office that makes such announcement.

3. The People’s Committee of the commune where the announcement is made shall certify the announcement and keep it for 15 days from the announcement date.

Article 20. The seals of public notary offices and private notary offices

1. The seals of public notary offices and private notary offices do not have the national emblem.

The Ministry of Public Security shall provide the design of the seals of public notary offices and private notary offices.

2. The procedure and dossier of application for the seals, the management and use of the seals of public notary offices and private notary offices must comply with the laws on seals.

3. Public notary offices may make and use the seal after the Establishment Decision is issued.

4. Private notary offices may make and use the seal after the certificate of registration is issued.

Article 21. Fees and charges for notarization

1. The notarization fees of public notary offices and private notary offices nationwide are consistent. The Ministry of Finance shall preside and cooperate with the Ministry of Justice in deciding the fee rats, the management and use of notarization fees.

2. The Ministry of Finance shall decide the fees for the notary training, the fees for verifying the dossiers of application for the appointment of notaries, the fees for issuing notary cards, the fees for issuing Certificate of private notary office registration in accordance with the laws on fees and charges.

Chapter 4.

THE STATE MANAGEMENT OF NOTARIZATION

Article 22. Responsibility of the Ministry of Justice, other Ministries, and ministerial-level agencies for the State management of notarization

1. The Ministry of Justice is responsible before the Government for State management or notarization, has the duties and entitlements specified in Clause 2 Article 11 of the Law on Notarization, and the following duties and entitlements:

a) Making and requesting the Prime Minister to consider, approve, and adjust the master plan for the development of notary offices by 2020, and guide the implementation of such master plan after it is approved;

b) Guiding the organization of training courses for notaries;

c) Cooperating with the Ministry of Natural Resources and Environment and the Ministry of Construction in issuing the Regulation on the provision of information about real estate between the agencies in charge of the registration of the rights to use land and house ownership and the notary offices.

d) Other duties and entitlements prescribed by law.

2. The Ministries, ministerial-level agencies, within the scope of their duties and authorities, shall cooperate with the Ministry of Justice in the State management of notarization, and perform the duties prescribed in this Decree.

Article 23. Responsibility of the provincial People’s Committees for the State management of notarization

1. The provincial People’s Committees shall administer the local notary offices in accordance with Clause 5 Article 11 of the Law on Notarization, and perform the duties prescribed in Clause 3 Article 7, Clause 4 Article 12, Clause 3 Article 15, Clause 1 Article 16 of this Decree, and other duties and entitlements prescribed by law.

2. The Services of Justice shall assists the provincial People’s Committees in the state management of local notary offices, and have the following duties and entitlements:

a) Organizing and cooperating in organizing the annual training courses for local notaries according to the guidance from the Minister of Justice as prescribed in Clause 3 Article 3 of this Decree;

b) Formulating and submitting the plans for the local implementation of the master plan for the development of notary offices approved by the Prime Minister to the provincial People’s Committees; counseling the provincial People’s Committees to organize the implementation of those plans after their issue;

c) Receiving, examining, and verifying the dossiers of application for the establishment of notary offices, and request the provincial People’s Committees to decide such establishment according to the approved master plan;

d) Registering the establishment of private notary offices as prescribed in Article 8 and Article 9 of this Decree;

dd) Recording the changes of the lists of notaries being partners of private notary offices; considering and sending written notifications to the private notary offices of the registration of the lists of notaries working under contracts as prescribed in Article 10 and Article 11 of this Decree;

e) Receiving and examining the dossiers of application for the conversion of private notary offices as prescribed in Article 12 of this Decree, and submit them to provincial People’s Committees for decision;

g) Deciding the suspension of private notary offices as prescribed in Article 13 of this Decree;

h) Revoking the Certificate of private notary office registration as prescribed in Article 14 of this Decree;

i) Requesting the provincial People’s Committees to decide the shutdown of private notary offices and revoke the decisions on the permission for the establishment of private notary offices in the cases prescribed in Article 15 of this Decree;

k) Counseling the provincial People’s Committees to build a database on the contracts and transactions related to the notarized real estate, and issue the regulation on the use and provision of information about the contracts and transactions related to the notarized real estate as prescribed in Clause 1 Article 16 of this Decree;

l) Guiding the People’s Committees of districts and communes, in the localities where the authority to notarize the contracts and transactions has been transferred from the People’s Committees of districts and communes to the notary offices, to hand over the documents about the authenticated contracts and transactions to the notary offices in case the amendment and supplementation of such contracts and transactions must be notarized.

m) Requesting notary offices to report their organization and operation as prescribed by law;

n) Guiding the local notary offices to resolve the of difficulties arising during the notarization;

o) Carrying out inspections, settling complaints and accusations against the organization and operation of notary offices as prescribed by law;

p) Other duties and entitlements prescribed by law.

Article 24. The inspection

1. The Ministry of Justice and provincial People’s Committees shall inspect the organization and operation of notary offices as prescribed by law;

2. Services of Justice shall assist them in inspecting the organization and operation of local notary offices. Where necessary, Services of Justice shall preside and cooperate with relevant Services and agencies in counseling the provincial People’s Committees to decide the establishment of inter-sectoral Inspectorates for inspecting the organization and operation of local notary offices. The notary office must be informed of the time and content of the inspections at least 07 working days before the inspection.

Services of Justice shall carry out inspections every year or irregularly where necessary, or at the request of the Ministry of Justice or provincial People’s Committees when a notary office or notary is suspected of violating the laws on notary offices.

3. The administrative inspections and specialized inspections of the inspectors of the Ministry of Justice and Services of Justice shall be carried out according to the plan for periodic inspections or irregular inspections as prescribed by the laws on inspection.

Chapter 5.

REGULATIONS ON THE IMPLEMENTATION

Article 25. Effects

1. This Decree takes effect on February 25th 2013, and supersedes the Decree No. 02/2008/ND-CP dated January 04th 2008, detailing and guiding the implementation of a number of articles of the Law on Notarization.

2. The regulations on the notary offices in the Government s Decree No. 75/2000/ND-CP dated December 08th 2000 on the notarization and authentication are annulled.

3. Point 1.a Clause 10 Article 2 of the Government s Decree No. 17/2006/ND-CP dated January 27th 2006 of the Government, amending and supplementing a number of articles of the Decrees guiding the implementation of the Law on Land, and the Government s Decree No. 187/2004/ND-CP on the conversion of state-owned companies into joint-stock companies, Are annulled.

Point g Clause 2 Article 37 of the Government s Decree No. 29/2008/ND-CP dated March 14th 2008 on industrial parks, export processing zones, and economic zones are annulled.

4. Article 3 of this Decree takes effect after 90 working days from the effective date of this Decree.

5. Clause 1 Article 7 of this Decree takes effect on the effective date of the Prime Minister s Decision on approving the master plan for the development of notary offices.

The Minister of Justice shall guide the implementation of this Clause.

Article 26. Implementation responsibilities

1. The Ministers, Heads of ministerial-level agencies, Heads of Governmental agencies, the Presidents of People’s Committees of central-affiliated cities and provinces are responsible for the implementation of this Decree.

2. The Minister of Justice shall guide the implementation of this Decree.

For the Government

The Prime Minister

Nguyen Tan Dung