Study On Certain Issues Of Notarial Rights

The Notarization Law of the People's Republic of China (hereinafter referred to as "The Notarization Law") enacted in 2005 avoided giving a direct answer to several fundemental problems such as the nature of notarial rights and the legal positioning of notary organs for the reform of notarial system has been under tremendous pressure for many years and at the same time the theoretical research of notarial system is relatively underdeveloped. Without sovling these problems, a series of issues about notarial system cannot be rationalized eventually. This paper is intended to analyse the nature positioning of notarial rights from the perspective of state power socialization and present several personal opinions about the subject, content, legal effect and supervision and conditioning of notarial rights so as to help to improve the building of our notarial legal system. The full paper is of three parts, as the preface, the main body and the conclusion.The main body is divided into five chapters.The first chapter begins with a reflection on the methodology of study on the nature of notarial rights. The author argues that similar with the civil law system countries, the notarial rights in China is derived from state power socialization. That is, on the issue of the definition of nature of notarial rights, besides of state power and private power, we still have a third choice called social power.The second chapter introduces several opinions about the nature study on notary organs in the academic field, then discusses that positioning the notary organs as "social intermediary organization" is more advantageous to be in accordance with the nature of notarial rights.The third chapter aims on the content of notarial rights, especially on the analysis of the principles of truthfulness in notarial fact cognition. It says that legal truth shall be the standard of notarial fact cognition and analyses the practices of the principle of legality in notarial items in China as well.The fourth chapter comments on the legal effect of notarial rights. By finding the power source of notarial rights in the theory of The Social Contract, the author points out that there are two ways to execute the legal effect of notarial rights (that is, to win public trust), one is to better the notarial legal system according to the public damands, the other is to select talented notaries and set up notary organs strictly accoring to law and regulations and make sure they are performing their duties by law.The fifth chapter discusses the defects of the supervision and conditioning system stipulated in The Notarization Law and the author further discusses two key aspects to reform and improve the supervision and conditioning system of notarial rights in China, namely, to strengthen the judicial supervision from the jurisdiction, and to strengthen the industry supervision from the notarial associations.