Amendment to the Law on Notarization: Stipulating criteria for determining transactions that must be notarized

The National Assembly Standing Committee proposed to accept and revise the draft Law on Notarization (amended) in the direction of not specifying the types of transactions that must be notarized, but only stipulating the criteria for determining the types of transactions that must be notarized, in order to ensure the stability of the Law.

Continue the program At the 8th session on the afternoon of October 25, the National Assembly discussed in the hall a number of contents of the project with different opinions. Law on Notarization (amended).

Ensuring the stability of the Notary Law

Presenting the report on explanation, acceptance and revision of the draft Law, Chairman of the Law Committee Hoang Thanh Tung said that regarding the regulations on types of transactions that must be notarized, some opinions agreed with the draft, which does not stipulate types of transactions that must be notarized in the Notarization Law.

Chairman of the Law Committee Hoang Thanh Tung presented a report explaining, accepting and revising the draft Law on Notarization (amended). (Photo: DUY LINH)

Some opinions proposed to add to the draft Law regulations on types of transactions that must be notarized such as: transactions on real estate; transactions on registered assets; transactions related to enterprises; other transactions that the law requires notarization.

The Standing Committee of the National Assembly found that, similar to many other countries in the world, our country's law also stipulates mandatory notarization for a number of important transactions related to land use rights, home ownership rights, a number of other types of assets that must register ownership and usage rights, and a number of other important transactions.

Transactions that must be notarized are currently regulated in relevant laws such as the Civil Code, Law on Marriage and Family, Land Law, Housing Law, Real Estate Business Law and a number of sub-law documents...

The Draft Law submitted by the Government at the 7th Session inherits the provisions of the current Notary Law, does not stipulate the types of transactions that must be notarized, but focuses on regulating issues related to notaries and notary practice organizations.

During the discussion and revision of this content, there were two types of opinions: The first type of opinion agreed with the Government's viewpoint, not specifying the types of transactions that must be notarized in the Notarization Law to avoid duplication with the provisions of specialized laws. The second type of opinion proposed to specify the list of transactions that must be notarized in the Notarization Law to ensure transparency and convenience in the application of the law by people and businesses.

According to the National Assembly Standing Committee, both of the above opinions have advantages and limitations. The option of not specifying the types of transactions that must be notarized in the Notary Law will create more flexibility for amending the regulations on transactions that must be notarized in other legal documents to suit the reality, ensuring the stability of the Notary Law. The limitation of this option is that transactions that must be notarized are regulated in many different legal documents, making it difficult for people to grasp and comply with the provisions of the law.

The option of specifying the list of transactions that must be notarized in the Notary Law has the advantage of ensuring transparency and convenience in law application, but the limitation is that it will legalize a number of provisions of decrees and circulars that are under the authority of the Government and Ministries, which does not ensure the stability of the Law when it is necessary to adjust the content and scope of transactions that must be notarized.

Based on the analysis of the advantages and limitations of each type of opinion mentioned above, the Standing Committee of the National Assembly proposes that the National Assembly incorporate the positive points of both types of opinions to revise this content.

Accordingly, Clause 2, Article 1 is added to stipulate the criteria for determining transactions that must be notarized, specifically: “2. Transactions that must be notarized are important transactions that require a high level of legal security and are required by law to be notarized.”; At the same time, the Government is assigned to direct the review of transactions that must be notarized that are currently regulated in current laws, decrees, and circulars to amend and supplement according to its authority and recommend competent authorities to amend and supplement within 1 year from the effective date of this Law, ensuring compliance with the criteria prescribed in the Law on Notarization. The Ministry of Justice is responsible for reviewing, updating, and posting transactions that must be notarized on the Ministry's Electronic Information Portal.

“This option ensures the stability of the Notarization Law because it does not specifically stipulate the types of transactions that must be notarized, while at the same time strictly controlling these types of transactions because they must comply with the criteria prescribed in the Notarization Law, ensuring publicity, transparency, and convenience in applying the law,” said Mr. Hoang Thanh Tung.

Scene of the meeting on the afternoon of October 25. (Photo: DUY LINH)

Proposal to supplement the model of notary office as a private enterprise

Regarding the organizational model of notary offices, the Chairman of the Law Committee said that some opinions agreed with the provisions of the draft Law submitted by the Government on the model of notary offices organized and operating in the form of a partnership company.

Some opinions proposed to regulate that notary offices be organized and operate in the form of partnerships and private enterprises nationwide or be applied to notary offices established in remote areas, areas with particularly difficult socio-economic conditions, while for other areas, only the form of partnerships should be applied. Some opinions proposed to supplement the regulation that notary offices be organized in the form of limited liability companies.

The Standing Committee of the National Assembly found that the current Law on Notarization and the draft Law do not stipulate the organizational model of a notary office as a limited liability company or with members contributing capital in a partnership company because notarization is a basic public service, a judicial support profession, so it has its own characteristics, and does not encourage the business goal of only making a profit, but focuses on the practice of notarization by partnership members and the unlimited liability regime of these members for the notarization activities they perform.

According to Mr. Hoang Thanh Tung, the majority of opinions of the National Assembly Standing Committee proposed that in addition to notary offices being organized under the partnership model as prescribed by the current Law, in district-level areas with low population density, underdeveloped infrastructure and services, and difficulties in establishing notary offices under the partnership model as prescribed by the Government, notary offices can also be organized and operated under the private enterprise model.

The advantage of this option is to expand the choices of notaries when establishing a notary practice organization, facilitating the development of notary offices in remote areas because this model only requires 1 notary to be the owner.

However, this model has limitations in that when the sole notary dies or for other personal reasons cannot practice notarization, it does not ensure the continuous and stable operation of the notary practice organization. The settlement of consequences regarding records, transfer of notarization responsibilities... for notary offices under the model of dissolved private enterprises will be a major problem for state management.

Source