Time: 2010-04-24 20: 4410: 30 Source: Author: Editor: admin
On May 6, 2006, the Ministry of Justice promulgated the Rules of Notarization Procedure (hereinafter referred to as the Rules). Based on the Notarization Law and the Notarization Procedure Rules revised in 2002, the Rules introduce new institutional mechanisms and improve new principles of notarization, which is of great historical and practical significance for further improving the notarization legal system and standardizing notarization practice.
First of all, it is necessary to revise the rules.
(1) The revision of the Rules is conducive to further improving the notarization legal system. On March 1 2006, the Notarization Law came into effect. Based on the practical experience of notarization, this law re-establishes the basic framework of notarization procedure system with the goal of fully guaranteeing and giving full play to notarization functions. According to the principle that the superior law is superior to the subordinate law, it is urgent to revise the old rules in order to implement the Notarization Law, maintain the unity and coordination of the notarization legal system and make the notarization procedure rules more scientific and reasonable in system and principle.
(two) the revision of the "Rules" is conducive to further improving the notarization procedure system. In view of the fact that the Notarization Law only provides principles for the notarization procedure system, it is necessary to concretize its principles and enhance its operability. Therefore, it is necessary to fully absorb and refine the mature experience and institutional measures accumulated in notarization practice, and closely combine notarization practice to supplement and improve the old rules. In addition, since the restoration of the notarization system for more than 20 years, great changes have taken place in social life, and the notarization cause has made great progress. The old rules must be adjusted accordingly to meet the actual needs.
(3) The revision of the Rules is conducive to further improving the quality and credibility of notarization. Notarization quality and credibility are the lifeline of notarization work, the basis and guarantee of notarization function, and notarization procedure system is an important measure and means to ensure notarization quality and credibility. Therefore, it is of positive practical significance to constantly absorb the successful experience in notarization practice, constantly enrich and improve the notarization procedure norms, and play its role in standardizing and supervising notarization activities. Judging from the contents of the newly revised rules, the concepts of "people-oriented" and "serving the people" are fully reflected in the division of notary practice areas, the improvement of rules, the way of dispute handling and accountability, which provides an effective means for the people to choose and use the notarization system and obtain notarization legal services in time.
Two. The revision of the rules fully embodies the principles of legality, science and rationality.
This revision is a comprehensive and systematic revision, mainly following four principles.
(a) strictly follow and reflect the provisions and requirements of the notary law. As the basic procedural norms of notarization practice, the Rules are highly consistent with the Notary Law in terms of overall system design, specific operational norms and written expressions, faithfully embody the legislative intent and institutional arrangements of the Notary Law, and strictly implement the system design and procedural requirements of the Notary Law.
(2) Properly handle the connection between the old and new procedural systems. On the basis of retaining the original notarization procedure system recognized by the notarization law, the relevant principles of the notarization law are fully embodied by adjusting the style structure, refining the procedure system and amending the accreditation rules.
(3) Pay attention to absorbing and refining the mature experience in notarization practice. The purpose of this revision is to enhance operability, summarize, refine and absorb the mature experience of notarization practice in standardizing and improving the procedural system in recent years, and further refine and improve the principled provisions of the Notarization Law on the notarization procedural system.
(4) Adhere to the unity of legality and feasibility. This rule not only strictly follows the requirements of the Notarization Law, but also takes into account the fact that the notarization system is not perfect. Proceeding from the development status and actual needs of notarization, we should try our best to refine the contents that can be accurately grasped at present according to law, and only stipulate the contents that are difficult to grasp or the problems that need to be further explored in practice in principle or not for the time being, and then improve them when conditions are ripe.
Three, the "rules" in the system design reflects the eight major changes.
(1) Standardize the subject of notarization practice, and the original title of "notary" has changed. According to the Notary Law, notaries and notaries are the main bodies of notarization practice, enjoying corresponding legal rights and undertaking corresponding legal obligations. The title of "notary" was widely used in the original "Rules", which refers to the general designation of notaries and various auxiliary personnel. This title does not conform to the standard provisions of the Notary Law, and it is difficult to define the respective functions, authorities and responsibilities of notaries and auxiliary personnel in the process of applying for a certificate. Therefore, the revised rules no longer use the title of "notary", but make it clear that notaries and notaries are the main body of notarization practice, clearly stipulate the rights and obligations of notaries and notaries in the process of applying for a certificate and the rules they should abide by, and at the same time require notaries to handle matters in person in the process of notarization, and shall not assign other staff of notaries to handle them. In the process of applying for a certificate, transactional, procedural and secretarial affairs that have no substantive procedural significance may be handled by notaries and other notaries who arrange and guide notaries as needed.
(two) according to the "Notarization Law" to establish a regional notary practice system. This system replaces the notarization jurisdiction system in the original rules. According to the regulations, the notarization practice area of notarization institutions should be approved by the provincial judicial administrative organs according to law, and notarization institutions can only accept notarization business within the approved area to avoid unfair competition caused by notarization institutions accepting notarization business across regions.
(3) Increased requirements for accepting legal notarization matters. Legal notarization matters are matters that should be notarized according to laws and administrative regulations. If it is not notarized, it has no corresponding legal effect. According to the Rules, notaries have a legal obligation to accept legal notarization matters that meet the acceptance conditions.
(four) clearly defined in the notarization activities, the parties and the notary public shall bear their respective responsibilities for the authenticity of the notarization matters, and enriched and refined the contents of the examination and verification according to law. According to the rules, in the notarization activities, the parties shall provide authentic, legal and sufficient certification materials for the notarization matters that need to be proved, and make necessary explanations or supplements to the questions raised by the notarization institution; If it is necessary to identify, inspect and translate professional issues, it shall entrust a notary office to apply for identification, inspection and translation from relevant professional institutions; If the contents of the documents applying for notarization are incomplete and inaccurate, they shall be corrected and revised under the guidance of the notary public. If a party refuses to perform the corresponding obligations or fabricates or conceals facts, or provides false supporting materials, or the supporting materials provided are insufficient and cannot be supplemented, notarization shall not be handled. A notarization institution shall examine relevant matters according to law, and if it needs to be verified or in doubt, it shall verify and collect evidence or entrust a notarization institution in a different place to verify on its behalf.
(5) Establish a notarization system. Refusing to apply for notarization is one of the termination systems of notarization procedures established according to the relevant provisions of the Notarization Law, and it is a perfection and enrichment of the system of refusing notarization. The Rules list nine situations in which notarization is not allowed. At the same time, the "Rules" also made specific provisions on the decision procedure and handling method of not handling notarization. In addition, the rules also supplement and refine the applicable circumstances and procedures of notarization procedure termination, thus making the notarization procedure termination system more perfect.
(six) the adjustment of the contents of the special provisions of the notarization procedure. This part is about the reform of notarization special procedure system. In view of the wide variety of notarization matters and the different applicable laws and rules, the Notarization Law only stipulates the general procedure of notarization. Therefore, the rules further refine and enrich the notarization law. According to the actual needs of notarization business and the refinement of some existing accreditation rules, at present, the rules set special procedural requirements for on-site supervision notarization, will notarization and preservation evidence notarization. In addition, it also stipulates the procedural provisions of some legal affairs derived from notarization business that notarization institutions can handle, including issuing execution certificates and mediating disputes over notarization matters.
(7) The notarization dispute resolution mechanism has been re-established. The notarization dispute settlement system stipulated in the Rules is a substitute for the original appeal and reconsideration system in the Rules. The system has established three ways to resolve disputes: the examination of notary organs, the handling of complaints by trade associations and civil litigation by people's courts. First of all, in the part of notarization institution review, two review procedures are stipulated: notarization parties and interested parties apply for review and notarization institutions take the initiative to review when they find problems. In particular, in the process of the parties' examination, the time limit for the parties and interested parties to submit the examination of notarization matters has been extended according to law. According to the rules, if an interested party in a notarial matter thinks that the notarial certificate is wrong, he can submit a review to the notary office that issued the notarial certificate within one year from the date when he knew or should have known the notarial matter, unless he can prove that he did not know. The time limit for filing a review shall not exceed 20 years from the date when the notarial certificate is issued. Secondly, because the revocation or non-revocation of notarial certificates often involves the major civil rights and interests of the relevant obligees, the rules stipulate that if the parties and interested parties of notarial matters have objections to the handling decision made by the notary public after re-examination, they can complain to the local notary association and authorize the China Notary Association to formulate complaint handling methods. In addition, this part also stipulates that parties, interested parties in notarization matters and notarization institutions may apply to the local notarization association for mediation when there is a fault compensation dispute. Compared with the original "Rules", judicial administrative organs no longer participate in the handling of notarization disputes, and notarial associations handle disputes and complaints and mediate compensation disputes. Thirdly, the rules require notarization institutions to fulfill the obligation of informing, and guide the parties and interested parties in notarization matters to seek judicial relief if they have disputes about the notarization content involving their substantive rights and obligations, and change the previous practice of seeking relief by appealing to notarization institutions and judicial administrative organs.
(eight) the provisions of the notary public institutions and notary illegal behavior investigation system. Article 72 of the Rules clearly stipulates: "If a notarization institution and its notaries violate Articles 41 and 42 of the Notarization Law and the provisions of these Rules in the process of notarization, the judicial administrative organ shall give corresponding punishment according to law; If there is a violation of the norms of the notary industry, the notary association will give corresponding industry sanctions. " In the future, it is not only the duty of judicial administrative organs, but also an important means of industry self-discipline to supervise and investigate the illegal acts of notaries. At the same time, notarization parties and interested parties in notarization matters have the right to complain to the judicial administrative organ or notary association if they find that notarization institutions and notaries have violated laws and regulations in the process of handling.
Generally speaking, the new rules further enrich and improve the notarization procedure system, and play a positive role in standardizing the practice activities of notaries and notaries, guiding natural persons, legal persons and other organizations to correctly use notarization means, protecting legitimate rights and interests and ensuring the safety of civil and commercial transactions.
In order to facilitate and guide people from all walks of life to deepen their understanding of the rules, the Ministry of Justice has compiled the Interpretation, which will be published on relevant websites and publications such as China Law Popularization Network, China Notary Network and Legal Daily.