Analysis Of The Notary System Reform

The INTERIM REGULATIONS OF THE PEOPLE'S REPUBLIC OF CHINA CONCERNING NOTARIZATION, which became into effect since 1982, has been on its way over 20 years. At present, it can't meet the requirements of the developing society in many aspects, especially about the issues of the nature of notary action, the notary public institute and notary public individuals, the obligatory notary, the effect of compulsive execution of notarized documents of creditor's right as well as notary compensation. This article will give its opinion about the issues above mentioned, hoping it may bestead to the notary legislation work.There are three kinds of viewpoints about the nature of notary officiating testimony as follows: one is the theory of public action (including administrative action theory, state testimony theory, justice nature theory), the other one is the theory of private action, the third is the theory of double nature. The author's idea is that notary has double nature, the public nature is a kind of administrative confirmation action; the private nature is a kind of social agency action between government and the party. Since the public nature is a kind of administrative confirmation action, so it can be suited.There are five viewpoints about dispute on the pattern of notary system as follows: one is preserving administrative organization, one is justice organization, one is public-service organization, one is agency organization, the last one is notary public firm. The author thinks that the notary organization in our country should be a social agency with the nature of public-service organization. About the setting of notary public office, should take the principle of Quantity Control with a Reasonable Layout, slotting out notary popedom according to the comprehensive features such as population, economic level and notary fee, setting notary public office base on these popedoms. The position of notary public staff should be taken by juristic worker of public-service organization.There are three viewpoints about obligatory notary as follows: one is building up feature theory, one is taking effect feature theory, the other is building up and taking effect feature theory. The author agrees with taking effect theory.There are also some dispute on the checking notarized documents of creditor's right by the people's court. The author's idea is that the format check giving priority toessential check..Calculating the limitation of applying execution of notarized documents of creditor's right, is another problem that feazing theory and practice workers. The author's idea is that, for the limitation of applying execution of notarized documents of creditor's right should be calculated according to the Article 219 of the CIVIL PROCEDURE LAW OF THE PEOPLE'S REPUBLIC OF CHINA; for the non-notarized documents of creditor's right, it should be notarized immediately to be endued with compulsive execution effect, the limitation of applying execution should be calculated according to the Article 135 of the GENNERAL PRINCIPLES OF THE CIVIL LAW OF THE PEOPLE'S REPUBLIC OF CHINA; in the case that the limitation of action of the documents of creditor's right has expired, if the both parties make an agreement of giving back voluntarily and co-apply compulsive execution notary, notary public institute still write a notary public with compulsive effect, in the spirit of the Supreme People's Court Regulation.The nature of notary compensation is national compensation, or civil compensation, or agency compensation? The author's idea is that the beneficiary of notary is not the whole society, besides, the notary public possesses the notary fee, therefore, the mistake notary compensation cost should be beared by the notary public. So, the notary compensation is civil compensation.Notary public institute takes its responsibility independently. But, there is a conflict between the limitation of it's compensation ability and limitless possibility of practical compensation. The professional responsibility insurance is the best way to tran...