Research On The Legal Evidence Of Effectiveness Of Notarial Certificate

The evidence is the key to action. Under the rules of evidence of "who advocates, who proof", mastering the most critical evidence means deciding to the success of the litigation. As strong evidences of effectiveness, Notarized documents have been playing a very important role in the evidence system in various countries. The provision of Article 69 in our “Civil Procedure Law” that “The people’s court shall take the facts and documents legalized by notarization according to legal procedures as the basis for ascertaining facts”, stressed the high-level effectiveness of notarial certificate. In judicial practice, preserving evidence and strengthening the rate of collecting evidence by notary becomes one of the important ways that we make full use of the notary system. Especially in recent years, with the rapid development of the Internet and e-commerce, evidence also show the trend of information, electronic data based on computer and network has been playing an increasingly important role in the proof of facts. “Civil Procedure Law” revised in 2012 added new types of evidence "electronic data" to adapted to the times require, but the features of "openness", "volatility" of "Electronic data" make the work of the evidence extraction, fixation and preservation facing many challenges. Notary public, as a statutory body, has been authorized to exercise the notarial functions of the state according to the law, and charged with statutory duties of ensuring authenticity and legitimacy of legal acts, legal documents and legal facts, and satisfied the needs of the people with its credibility and effectiveness. So, with the promotion of people’s awareness and the growth of people’s demand, notary evidence are increasingly being used in social life, and their effective operation mechanism and system value are also attracting more and more attention.It’s obviously necessary to discuss the issue of notarization evidence effect in such a background of the current times, especially it has direct significance to alleviating the difficulties of proof-- evidence in judicial practice. in our country, the reconstruction and development of the modern notary is not a long time, and because of the short history of modern notary, it inevitably expose kinds of problems: People have not generally fostered "notary consciousness" and accepted the notary value, Few studies and discussions in academia notarization makes a serious shortage of notarial theories, Improper propaganda and misinformation of the media exaggerated of the negative effects of notary and once leaded to a negative impact, so the proper value of notary system which aims at prevention of disputes and reduce litigation can’t fully play the role. In addition, immature and inadequate notarial reform strengthened the "Polarization" misunderstanding of the general public: One is "Notary Useless", thinking that notary is simple selling seal for money and lack of credibility and shall be freely overturned and denied. The other is “Notary Omnipotent”, thinking that everything the once notarized means “Irrefutable evidence” and “safe” and all is well.Then, how should re-look at the legal system of the validity of the notary? How to correctly interpret and explain the most basic effect of legal evidence among the system? Which elements the notarized evidence of effectiveness constitute by? How is the internal mechanism? Compared with other evidence, what are the characteristics and advantages of the notary evidence of effectiveness? How to judge the validity and conduct relief when there are flaws? What is the real state of the usage of the notary evidence of effectiveness? What are the outstanding problems still to be resolved? What are the deficiencies of the present measures? How to improve the system so as to fully release the practical value of the notarization of evidence effect and meet wide variety needs of the modern market society.All these problems indicate that the issue on the legal effect of evidence of notarization really has a strong practical value. Taking the method of practice investigation should be more persuasive than the pure theoretical deduction. So I try to make a breakthrough in theory and consciously make extensive fieldwork in this paper at the same time, in order to strengthen the "pragmatic" and "convincing" of the theoretical study with the actual research data and real practical case. It’s precisely the direct purpose of this paper topics that thinking and solving the above problems through the theory study and the practical Investigation to make up the alienations between the proper value and the true value of the notary evidence of effectiveness. Of course, Combination of theoretical explore and empirical research also build a basic logical architecture and confirm the double meaning of innovation theory and practical guidance of this thesis. The whole paper consists of 7 parts: Introduction, 5 chapters and epilogue, the basic contents and the innovation point of each section are summarized below:The Preface leads to the topic of notary effectiveness from a macro angle of the system and explains briefly the value of research significance combining with the contents of the Fourteen Third Plenary Session.Chapter1, Overview of the legal effect of evidence of notarial certificate. The chapter differentiates and analyzes the multiple concepts involving effect of evidence of notarization, Introduces the provisions about the effectiveness of evidence of notarization of the two legal systems, evaluate and analyzes and sum up and summarize the nature and characteristics of the notarization of evidence. The innovation of this chapter is that it’s the first time to put forward that as a direct result of the notarial certificate functions and written carrier, the legal effect of evidence of notarial certificate reflects the value of existence of notary system, extends and expresses the credibility and effectiveness of the system of public notarization, so it’s necessary to regard the legal effectiveness of evidence of notarial certificate as a comprehensive value system with strong practical character and re-examine the basic theoretical problems of the evidence effect of notarization in the framework of this value system. Base on dialectically analyzing the concepts of the effect of evidence of notarization certificate, authentication certificate and the object of notarial certificate, pointing out the lack and insufficiency of many current controversial views on the legal effect of evidence of notarial certificate, comparatively estimating the various theories of “judicial cognition "," presumption "and “the facts free from the burden of proof”, the chapter puts forward that it’s appropriate to observe and study the facts proved by notarial certificate as an independent fact free from the burden of proof.Chapter 2, Expounding the profound meaning of legal evidence of notarial certificate effectiveness. As the basic and most important effectiveness, legal evidence of effectiveness constitute the backbone of the effectiveness of the notary system. Based on existing legislation, the chapter deeply interpret the theoretical legal evidence of effectiveness, highlight and emphasize the advantage of legal evidence of effectiveness of notarial certificate through a comparative analysis, and show special advantages of legal evidence of effectiveness with the the most typical and representative example of notarial certificate of evidence preservation, then deeply clarify the intrinsic mechanism and external system support of the special advantages. The innovation of this chapter is that it’s the first time in notary field to separately dissect the evidence ability and the evidence force of the notarial certificate from the “quality” and “quantity” differentiate the formal and substantive effectiveness between the dispositive and reporting notarial certificate, and induct the characteristics and comparative advantages of the legal evidence of effectiveness. It’s also the first time in notary field to confirm the mechanism and legitimacy of advantages of legal evidence of notarial certificate effectiveness from multi angle on suitability of the notary functional subject, the statutory of the object scope of notarization, the specificity of multi functions of notarization, the standardized procedure of the notary practice activities and the Security error remedy mechanism.Chapter 3, Examination and verification of evidence effect of notarization. The chapter elaborates how to examining and recognizing of the evidence effect of notarization in the judicial practice of various countries, fully explore the various elements and their scale of the effectiveness and classify and analysis various defects which lack of elements in order to prepare for solving the problem of defect of notarial certificate that founded in empirical research. The innovation of this chapter is that it’s the first time in notary field to make deeply interpretation about the "Truth and Legality " unlike previous which is the measure of Legal evidence of effectiveness, present that unlike the literal meaning of "Truth and Legality ", it actually contains more abundant and profound connotation which not only refers to the "Truth and Legality " of the object, but also the "Truth and Legality " of the subject qualification, startup of procedure, providing proof materials and The notarial certificate itself. Then extend the theory discussion further and suggest that weighting the scale of "True and lawful" by the measure of "beyond reasonable doubt" and rebuilding the “dualistic” standard of truth and rethinking the border of legality.Chapter 4,The application status and existing problems of China’s notary evidence. Through empirical research, this chapter investigates the usage of evidence of the effectiveness in practice, truthfully reflect the practical problems which are prominent reasons hindering legal evidence of effectiveness by data statistics and case analysis. The rich material not only response and enrich the theoretical argument foregoing, but also lay a concrete, compelling basis for countermeasure following. The innovation of this chapter exists in comprehensively studying the evidence of effectiveness of the notarial certificate both in the litigation and Non-litigation areas, realistically reflects the various problems about the application of legal evidence of effectiveness, including cognitive bias, defect controversy, alienation use, false and fake and etc. To help correcting the public view of the notary legal evidence of effectiveness, the chapter elaborate the above problems in detail with the examples of notarial certificate of entrustment, inheritance, testament, declaration of giving up succession, gift of real estate, transactions of real estate and preservation of evidence which prone to litigation among the data collected in practice.Chapter 5,Considerations on solution to the problem of using notarial evidence in practice. On the purpose of solving the problem, the chapter reference to several supporting mechanism for ensuring the effectiveness of the legal evidence of the notarial certificate in the civil law countries, review the lack of corresponding mechanisms of our country, and put forward to the idea for improvement from the aspects of strengthening duties, giving security means, rebuilding systems and implementing the responsibility. The contents of this chapter are being of pioneering significance no matter from innovation of logical thinking, the choice of perspective or reference from the exotic system, now briefly described as follows:(1)In order to solve the problem of formality of inform obligation by notary public office, the chapter propose that clarify and strengthen the responsibilities and obligations of notarial functional body by implanting "the interpretation obligation" and "publicity obligations" of Civil Law countries in our notarization law.(2) Base on overview of the substantive examination means in the countries of the continental law system, assume that returning the right of investigation to notary public office in our country to virtually guarantee "authenticity" and "legitimacy" of the notary evidence and make up for lack of means of examine and verify.(3) For solving the embarrassing problem generally exists in the notarial practice in china that the advantages of legal effect of evidence of notarization are being abused, after comparatively analysis of typical and atypical principle of “Documentary Evidence Priority” between Civil law and Common law, the chapter propose that it is necessary to draw appropriately the essence from the doctrine of documentary evidence priority, and improve the legal protection system for the advantage of legal evidence of effectiveness of notarial certificate and solve the problem of alienation within the framework of the evidence System.(4) With the common phenomenon that obtaining notarial certificate resort to deceit by the parties being of increasing severity, and related accountability mechanism is not yet done, the chapter opens up a breakthrough topic about the responsibility for the notarial parties concerned or any other individual or organization combined with the latest judicial interpretation.The Epilogue refine and draw the main views from the contents foregoing, generalize and epitomize all the measures that shall be taken to solve the problems existing in theory, legislation and practice of legal evidence of effectiveness of notarial certificate.