Exploring the Role of Notaries in Vietnamese and French Societies: A Comparative Study
Origin of the Notary's Function: Tracing the Evolution of the Role in France and Vietnam
The notary's function, as we know it today, can be traced back to the reign of Saint-Louis in 13th century France. While its roots can be found in Roman Empire institutions, it was during this period that the notary's role was established and its importance recognized.
In France, the law of the 29th of September and the 6th of October 1791 established notaries as government-appointed public officials, cementing their position in the legal system.
In Vietnam, the history of the notary's function is less clear-cut. While some argue that the French order of August 24, 1931, which established the notary's office in Indochina, marks the beginning of the notary's office in Vietnam, others claim that it wasn't until the Ministry of Justice issued a circular on public notarial activity on October 10, 1987, that the notary's office was truly established.
The legal system of Vietnam was heavily influenced by the laws of the former Soviet Union and socialist countries during this time, resulting in a collaborative notarization approach that saw the notary's office become a state agency, with the notary as a state official. However, the concept of the Vietnamese notary's office has since moved from a governmental model to an independent profession model after the implementation of the 2006 Notarial Law.
I. Becoming a Notary in Vietnam: Qualifications, Training, and Appointment Procedure
A. The 5 Standard Conditions for Notary Candidates in Vietnam
So, how does one become a notary in Vietnam? There are five standard conditions, according to the provisions of Article 8 of the Law on Notary Public 2014, that a permanent Vietnamese citizen must meet. They must reside in Vietnam, observe the Constitution and laws, have good moral qualities, have a Bachelor's degree in law, have worked in law for five or more years in agencies and organizations after graduating with a Bachelor's degree in law, have graduated from a notarial training course or completed a notarial refresher course, meet the requirements for notarial practice probation scores, and be physically fit to practice as a notary. It's important to note that foreigners cannot become notaries in Vietnam.
B. The Process of Becoming a Notary in Vietnam
After obtaining a law degree, the student must have a university degree to participate in the notary professional training, which lasts 12 months. Following this, they must practice as a trainee in a notary practice organization within 12 months. The trainee must then go through the Department of Justice to verify the conclusion of the probationary term of notary practice. At most twice a year, an examination to check the results of the notarial probationary period is held. After checking the results of the probationary period of notarial practice, a certificate is awarded to those who pass the examination.
C. The Rigorous Appointment Procedure for Notaries in Vietnam
The appointment procedure for notaries in Vietnam is a rigorous process that ensures only the most qualified individuals are appointed to the role. Once the required qualifications are satisfied, candidates must submit an application to the Department of Justice to register as a notary practice intern. The Department of Justice then sends a written request for the appointment of a notary to the Minister of Justice, who must examine and decide on the appointment within 30 days of receiving the request.
II. The Role of Notaries in Ensuring Legal Certainty: Legal Status and Functions
A. The Vital Role of Notaries in Ensuring Legal Certainty in Vietnam
In Vietnam, notaries play a vital role in ensuring legal certainty in the country. The legal responsibility and status of notaries remain the same, regardless of whether they work in a public or private notary office. The establishment of private notary offices requires permission from the People's Committees of the provinces and central cities. However, the legal duties of notaries remain consistent across both public and private offices. The uniformity of the legal responsibility and status of notaries ensures that individuals and businesses can trust the authenticity and validity of legal documents, promoting the smooth functioning of the legal system.
On the other hand, notaries in France are public servants appointed by the Minister of Justice and vested with public authority. As legal professionals, notaries operate in all legal fields and act as full-fledged lawyers. They are responsible for drafting documents and providing legal advice, consulting on laws, and collecting taxes for the state. The legal status of notaries in France reflects the central role they play in the country's legal system.
B. Notaries in France: Public Servants with Central Role in the Legal System
Notaries in Vietnam perform essential legal functions. They validate translated acts, copies, and signatures, and authenticate contracts and transactions. They are also responsible for certifying papers as part of various administrative processes, verifying legal acts and contracts, such as real estate sales, successions, donations, wills, and mortgages. Notaries in Vietnam establish genuine acts that hold a strong probative value, ensuring legal certainty for individuals and businesses.
In France, notaries perform a wide range of legal services. They are responsible for legalizing parties' agreements and have the authority to attach the notary public's seal of authenticity to any document they receive. They also keep all draft documents. Notaries in France are general law specialists with a holistic view of legal matters. They have the ability to intervene on a larger scale, in addition to certifying and maintaining the protection of legal documents. Notaries in France are specialists in both general and tax law frameworks, making them highly successful in advising clients.
In conclusion, notaries play an essential role in ensuring legal certainty and providing legal expertise in both Vietnam and France. Despite the differences in the appointment procedure and legal functions of notaries in these countries, they both contribute to the efficient functioning of the legal system and facilitate economic development. By authenticating legal documents, providing legal advice, and mediating and settling disputes between parties, notaries contribute to the overall stability of the legal system, promoting trust and confidence in the legal processes.
III. What is the Place of Notarization in Society?
Notarization is not only a highly specialized activity but also a deeply social one. Notaries provide a vital support tool for dispensing justice, preventing disputes, and creating a stable legal environment. They play an essential role in promoting the development of the market economy, supporting citizens, and protecting the rights and legitimate interests of individuals and organizations, thus ensuring the legal security of civil and economic transactions.
In Vietnam, there are 3628 practicing notaries, approximately one notary for every 26,500 inhabitants. The notarial profession in Vietnam has made significant contributions to the country's economic and social life over the years. Notaries in Vietnam contribute to the effective and efficient management of the state, making the legal system more transparent, consistent, and accessible to all.
In France, there are 16,196 practicing notaries, approximately one notary for every 4,130 inhabitants. The notarial profession in France has developed significantly over the years, with the advisory function of notaries growing stronger. The consulting activities of notaries have met the increasing needs of people in all fields, from marriage and family to trade and real estate or property management. Notaries are obliged to advise all clients, regardless of their level of knowledge, reflecting their role in ensuring legal certainty and providing legal expertise to individuals and businesses.
In conclusion, notaries play a crucial role in society, contributing to the effective functioning of the legal system and promoting economic development. By ensuring legal certainty, providing legal expertise, and mediating and settling disputes between parties, notaries are an essential component of the legal systems in both Vietnam and France. They contribute to the overall stability of the legal system, promoting trust and confidence in the legal processes, and play an indispensable role in creating a stable legal environment that benefits society as a whole.
IV. Conclusion
In France, the notary's office has evolved to make significant contributions to the country's economic growth, legal stability, and social well-being. Notaries in France play an essential role in promoting legal certainty, providing legal advice, and mediating and settling disputes between parties. Their holistic view of legal matters, ability to work with both the general and tax law frameworks, and role as full-fledged lawyers make them highly successful in advising clients.
In Vietnam, as the country's socioeconomic development accelerates, civil, commercial, land, and other interactions have become stronger and stronger, highlighting the need for notarization activities to expand at a rapid rate to meet the demands of the global market economy. However, the lack of notaries in Vietnam poses a significant challenge, particularly in ensuring the validity and legitimacy of transactions.
One major concern is that notaries in Vietnam are unable to witness the parties' payment obligations being fulfilled due to a shortage of notaries. It raises the question of how notaries can deem a transaction valid if the payment amount contains illegal elements, such as the aim of avoiding responsibilities, obtained through illicit conduct, money laundering, or tax evasion.
Furthermore, the proof offered by the notarization requester is crucial in proving the validity and legitimacy of the notarization. However, Vietnamese notaries often lack official written proof to fulfill their main duty. Therefore, addressing these concerns is essential for notarization to continue contributing to Vietnam's economic and social development.
In conclusion, while notarization has made significant contributions to the legal systems and socioeconomic development of both France and Vietnam, there are challenges that must be addressed for notarization to continue to play a vital role in society. Notaries must continue to evolve and adapt to meet the changing demands of the global market economy, ensuring legal certainty, and providing legal expertise to individuals and businesses.
Alexandre Germouty
President of the AJAI from 2021 - 2022
