The house power of attorney shall not contain the contents such as entrusting to make a will and giving.
In recent years, with the continuous increase of housing circulation and mortgage, the amount of notarization of housing power of attorney related to it has also expanded rapidly. However, in the process of handling, there are different operation modes in some specific problems and links, which leads to the ambiguity of whether the notarization procedure of power of attorney is standardized and whether the notarization certificate is effective.
Jia Xiangming, deputy director of the Business Rules Committee of China Notary Association and director of the Notary Administration Department of Heilongjiang Provincial Department of Justice, said that in the past, there were no clear and specific provisions on what the housing power of attorney should include, which often caused the power of attorney to be "missing". The guiding opinions specify in detail the contents that the power of attorney for the house should contain, in particular, it is clear that "the power of attorney shall not contain the contents that should be executed by me according to law, such as the establishment of wills and gifts" and the handling methods in the case of multi-person entrustment or multi-person entrustment.
Whether to conduct substantive examination on the ownership of the house and the marital status of the client has always been a controversial issue in the industry. This guidance provides two different ways for notaries to notarize the house power of attorney: one is to prove the signature (seal, fingerprint) and signing date of the client on the house power of attorney according to Article 38 of the Rules of Notarization Procedure; The other is to prove the entrustment behavior and the signature (seal, fingerprint) and signature date of the client according to the provisions of Article 36 of the Rules of Notarization Procedure.
Jia Xiangming believes that it is expected to solve the problem of substantive examination or formal examination of the notarization of housing power of attorney by stipulating two ways to apply for a certificate. According to the provisions of Article 38 of the Rules of Notarization Procedure, notarization shall be conducted by way of examination; According to the provisions of Article 36 of the Rules of Notarization Procedure, substantive examination shall be conducted.
In addition, the guidance stipulates the handling method of "proof of custody and guarantee of disposing of the house for the benefit of the ward", thus solving the problem of whether the notarization of the guardian's power of attorney to dispose of all the houses of the ward can be handled. At the same time, it affirmed the practice of "annotation" in the certificate of house entrustment, and added auxiliary methods of audio and video recording or appraisal.
Notarization of marital property agreement shall not be entrusted to others.
"The Guiding Opinions on Handling the Notarization of Husband and Wife's Property Agreement is of great significance for promoting the notarization of husband and wife's property agreement and standardizing the certification behavior of notarization institutions." Chen Zhiquan, Chairman of the Business Rules Committee of China Notary Association, gave a positive evaluation of the guidance.
Chen Zhiquan believes that the guidance flexibly defines the scope of the parties and clearly stipulates that "both husband and wife applying for notarization of the marital property agreement shall jointly submit it to the notary office and shall not entrust others to act as agents." Considering that in practice, many parties have applied for notarization of premarital property agreements, and the guidance has made flexible provisions. "If both men and women who are going to get married sign property agreements on matters such as the ownership of their premarital property and the property acquired during the marriage relationship before going through the marriage registration, the notarization institution can refer to this guidance. The property agreement mentioned in the preceding paragraph shall specify the contents of the agreement with marriage registration as the effective condition. "
The guidance comprehensively stipulates the scope of property that couples can agree on. The marital property agreement not only stipulates "positive property", but also stipulates "negative property (debt)". "The marital property agreement can stipulate all the marital property or part of the marital property; All property after marriage can be agreed, and all property before marriage can also be agreed; You can agree on the burden of family living expenses and debt repayment responsibility during the marriage relationship, or you can agree on the division of property when the marriage relationship is terminated. "
Article 8 of the guidance stipulates that the notary office should focus on examining whether the original property ownership certificate is suspicious and whether the property ownership agreed by the husband and wife is clear.
"This provision reasonably defines the review responsibility of the notary office and the burden of proof of the parties, that is, the authenticity of the property rights involved in the marital property agreement is mainly verified by the husband and wife themselves, and the main responsibility of the notary office is to verify whether the ownership of the agreed property is clear, which plays a very important role in improving the efficiency of handling permits and reducing the cost of handling permits." Chen Zhiquan said.
Notary agencies should focus on informing the parties that the legal effect of the marital property agreement is internal (referring to the husband and wife) and external (referring to the third party), and it is also clearly stipulated in the guidance.
Notarization of creditor's rights documents shall be applied by both creditors and debtors.
According to Liu Jiang, chairman of the Business Rules Committee of China Notary Association, the Guiding Opinions on Notarization of Creditor's Rights Documents with Enforcement Effect and Issuance of Enforcement Certificates plays an important role in enhancing the legal effect of notarial certificates, realizing the purpose of notarization and reducing litigation.
The guidance stipulates that "if a party applies for notarization of creditor's rights documents with enforcement effect, it shall be submitted by both the creditor and the debtor to the notary office. If the guarantor (including guarantor, mortgagor, pledger and counter-guarantor, the same below) promises to accept the compulsory execution of the creditor's rights documents guaranteed by a third party, the guarantor shall apply to a notary office. The application for issuing the execution certificate shall be submitted by the creditor to the notary office. "
In Liu Jiang's view, this provision eliminates the debate about whether the guarantor must apply for notarization of creditor's rights documents with enforcement effect, further clarifies that only creditors can apply in the process of issuing enforcement certificates, and clarifies the misunderstanding that debtors also need to apply for issuing enforcement certificates.
In view of the problem that the debtor does not cooperate with the notary office to verify the fact that he fails to perform or fails to perform his obligations correctly before issuing the execution certificate, the Guiding Opinions stipulates the mode of "agreed verification", that is, "the notary office can guide the parties to make an agreement on the burden of proof of both parties and the verification method of the debtor (including the guarantor) in the process of issuing the execution certificate", and "if the parties have an agreement on the verification method, the verification shall be carried out in the way agreed by the parties; If there is no agreement between the parties, they may decide their own verification methods according to the provisions of Article 9 of these Guidelines. "
In recent years, some parties have tried to recover illegal debts and illegally transfer property through compulsory notarization to harm the interests of the third party. In this regard, the "Guiding Opinions" stipulates that "if a party enters into a new agreement on a dispute or breach of contract in the performance process and applies to a notary office for notarization of a creditor's right document with enforcement effect on the new agreement, the notary office can accept it, but the party concerned shall be required to provide true and legal proof materials of the original creditor's right and verify the proof materials in an appropriate way.
reference data
Law express. Law Express [citation time 2018-1-17]