Comparative study : The place of the notary in Vietnamese and French societies

 

Introduction: Origin of the notary's function

 

The function of the notary in France was influenced by Roman Empire institutions, but it was properly founded during the reign of Saint-Louis in the 13th century. The law of the 29th of September and the 6th of October 1791 established notaries as government-appointed public officials.

 

Some argue that the French order of August 24, 1931 on the establishment of the notary's office, which was implemented across Indochina, marks the beginning of the notary's office in Vietnam. There was one notary office in Hanoi and three notary offices in Saigon at the time.

The chief of the administrative office of the court of first instance performed notarial duties in the remaining provinces.

 

Others claim that the notary's office was only founded in Vietnam in 1987, when the Ministry of Justice issued a circular on public notarial activity on October 10, 1987. On September 21, 1988, the first notary public office in Vietnam was opened in Ho Chi Minh City. The legal system of Vietnam was greatly impacted by the laws of the former Soviet Union and socialist countries during this time. Vietnam's notarization was considered to be based on a collaborative notarization approach at the time. The notary's office was, in fact, a state agency, with the notary as a state official.

 

However, the concept of the Vietnamese notary's office has moved from a governmental model to an independent profession model after the implementation of the 2006 Notarial Law.

 

I. How to become a notary in Vietnam ? 

 

A. There are 5 Standard conditions to become a notary in Vietnam

 

According to the provisions of Article 8 of the Law on Notary Public 2014: a permanent Vietnamese citizen who resides in Vietnam, observes the Constitution and laws, has good moral qualities and meets all of the following criteria can be considered and appointed as a notary:

- You must have a Bachelor's degree in law;

- Have worked in law for 5 years or more 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.

- Be physically fit to practice as a notary.

 

> A foreigner cannot become a notary in Viet Nam

 

B. Now we will review the process to become a notary :

 

After graduating from law school, the student must have a university degree to participate in the notary professional training, the training period is 12 months for a law degree. 

After obtaining a certificate of completion of training as a notary, the student must practice as a trainee in a notary practice organization within 12 months. This period is counted from the date of registration as an apprentice with the Ministry of Justice in the locality where there is a public practice organization certifying the apprenticeship.

Then, the trainee must go through the Department of Justice where he enrolls as an apprentice to verify the conclusion of the probationary term of notary practice. At most twice a year, the 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. About the Appointment procedure:

- Once the aforesaid qualifications are satisfied, the candidate submits an application to the Department of Justice, where he registers as a notary practice intern, either in person or by mail.

 

- The Department of Justice shall send to the Minister of Justice a written request for the appointment of a notary, attached to the application for appointment, within 10 working days; if the application is rejected, it shall notify it in writing, clearly indicating the reason for the applicant.

 

- The Minister of Justice must then examine and decide on the appointment of a notary within 30 days of receiving the request from the Department of Justice; the case of refusal of appointment must be notified in writing to the Department of Justice and the applicant for the appointment, clearly stating the reason.

 

II.        What are the duties of the notary ?

 

A. Let’s mention Legal status of the notary: 

 

Notaries are professional witnesses appointed by the State with delegation of public power. The notary institution in Vietnam is in transition from the former state notary model (public notary offices) to an independent notary model (private notary offices). At present, therefore, a mixed transitional model prevails. Both types of bodies have the same legal responsibility. Notaries are equal before the law: the appointment process, their rights and obligations and the legal value of their notarial acts are identical. Previously, the creation of notarial bodies was based on the "comprehensive planning of the development of the notarial profession". Since 2017, the establishment of a private notary office only depends on the permission issued by the People's Committees of the provinces and central cities. 

 

In France, notaries are public servants appointed by the Minister of Justice, so notaries are vested in public authority. As a professional operating in all legal fields, a notary is a full-fledged lawyer, not only a document drafter but also a notary, legal consultant laws and tax collectors for the state.  

 

B. The legal functions of the notary: 

 

Notaries in Vietnam are in charge of validating translated acts, copies, and signatures, as well as authenticating contracts and transactions.

 

There are two types of notary competences. On one hand, they certify papers as part of a variety of administrative processes (company registration, job search, family reintegration or dispute related to expropriation during the collectivization of property). The notary, on the other hand, is also a public official tasked with verifying legal acts and contracts such as real estate sales, successions, donations, and wills, as well as mortgages. As a result, they establish genuine acts that have a strong probative value.

 

Notaries in France are able to conduct a wide range of different services as asked by clients or legal authorities. The notary public is the person who legalizes the parties' agreement and has the authority to attach the notary public's seal of authenticity to any document he receives. All draft documents are also kept by the notary. Notaries can intervene on a larger scale in addition to certifying and maintaining the protection of the above papers; they are general law specialists with a holistic view of legal matters. They have the ability to interfere with both the general and tax law frameworks, making them extremely successful in counseling their clients.

 

III.       What is its place in society?

 

Notarization is both a highly specialized activity and a deeply social activity. Notaries carry out their activities as a support tool for dispensing justice, preventing disputes and aiming to create a stable legal environment and strengthen socialist legislation. Over the years, notarial activities have made significant contributions to the economic and social life of Vietnam, promoting the development of the market economy, supporting citizens and protecting the rights and legitimate interests of citizens and organizations in order to ensure the legal security of the civil and economic transactions of domestic and foreign organizations and individuals, thus contributing to strengthening the effectiveness and efficiency of state management.

 

In Vietnam, there are 3628 practicing notaries, which is approximately 1 notary for every 26,500 inhabitants.

 

In France, there are 16,196 practicing notaries, which means there is approximately 1 notary for every 4,130 inhabitants.

 

The advisory function of notaries has developed strongly in France. The consulting activities of notaries have met the increasing needs of people in all fields (marriage and family, trade, real estate or property management...). Notaries are obliged to advise all clients, regardless of their level of knowledge; 

 

IV. Conclusion 

 

In France, the evolved function of the notary's office has made a significant contribution to the country's economic growth as well as its legal and social stability.

 

In Vietnam, civil, commercial, land, and other interactions have gotten stronger and stronger as the country's socioeconomic development has accelerated.

 

The expansion of notarization in Vietnam must proceed at a rapid rate in order to meet the demands of the country's worldwide market economy.

 

However, there are major concerns with notarization activities that Vietnam must first overcome. Due to a lack of notaries in Vietnam, in the vast majority of transactions, the notary is unable to witness the parties' payment obligations being fulfilled. How can a notary 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 a crucial aspect in proving the validity and legitimacy of the notarization. Although, Vietnamese notaries usually lack official written proof to fulfill their main duty. 

 

 

Alexandre Germouty

President of the AJAI from 2021 - 2022