People’s demand for notarization and authentication is increasing. However, there are still cases in which people do not understand this procedure, thereby leading to loss of time and cost.
NOTARIZATION AND AUTHENTICATION AS STIPULATED BY LAW
According to Article 2 of the Law on Notarization that took effect from July 1st, 2007, “notarization means an act whereby a notary certifies the authenticity and legality of written contracts or other transactions (below referred to as contracts or transactions) subject to notarization as prescribed by law or at the request of individuals or organizations of their own free will”. Authentication includes authentication of copies from originals and authentication of signatures. Decree 79/2007/ND-CP defines these two concepts as follows:
- Authentication of copies from originals means that a competent agency bases itself on originals to certify that copies from those originals are true;
- Authentication of signatures means that a competent state agency authenticates that signatures in papers or documents are truly those of authentication requesters.
Thus, unlike regulations on authentication, before conducting transactions, in some cases, parties are forced the to carry out notarization as prescribed. At present, the notarization transactions and contracts is often regulated by specialized laws and there are no legal documents prescribing this matter systematically. The most distinguishable sign between notarization and authentication is that all types of assets, including land use rights that are related to the registration of ownership are required to be notarized. Therefore, house purchase/sale contracts, lease contracts of 6 months or more, residential mortgage contracts, etc. must be notarized.
IMPLEMENTATION OF NOTARIZATION AND AUTHENTICATION
The implementations of notarization and authentication have differences. The notarization procedure will be conducted by the notary office depending on the choice of the person in request for notarization, except in certain cases where the notary office is appointed in accordance with the law. The authentication procedure will be carried out by commune-level People’s Committees (for documents in Vietnamese) and district-level People’s Committees (for documents in Vietnamese and foreign languages) without depending on the residence of the person requesting authentication.
LEGAL VALIDITY OF NOTARIZATION AND AUTHENTICATION
A notarized document is binding on all related parties. When one party fails to perform his/her duties, the other party may request a court to settle the case according to law, unless otherwise agreed upon by the parties to the contract or transaction. In addition, a notarized document serves as a proof or evidence; circumstances and facts therein need not be proved unless they are declared invalid by a court.
Even in some cases, notarization is considered to be one of the conditions for the contract to take effect. It means that if the parties do not implement notarization, the contract will be terminated. Thus, it is likely that the parties must cancel the contract and the party at fault must pay compensation to the other party in accordance with civil law.
This is also a striking difference between notarization and authentication. The authentication procedure is not a mandatory one, which is done on request. The authenticated copies of the originals shall be of use instead of the originals in transaction. An authenticated signature shall be valid only to prove that the person requesting the authentication has made that signature.
PHAN LAW VIETNAM
Hotline: 1900.599.995 – 0794.80.88888
Email: info@phan.vn
