Notary Compensation

Section 43 of the Notarization Law of the People's Republic of China which began to go into effect on March 1, 2006 defines notarial compensation and identifies it as a kind of civil liability. But in practice, some civil cases with notary organs as defendants let people dispute not only the nature and principles of notarial compensation, but also the litigation status, the burden of proof and the defense subjects of the notary organs in this kind of cases. So the notarial compensation system of China need to be perfected urgently.In the first part of this paper, the author discusses the meaning, the nature and the characteristics of notarial compensation. About the nature of notarial compensation, the author's viewpoint is that it should be a kind of experts responsibility in special tort because notaries generally meet the provisions of the characteristics of experts and notarization practice also meet the characteristics of experts responsibility. Therefore, the notarial compensation liability should be the responsibility of experts belonging to civil liability.In the second part, the author discusses the principles of notarial compensation liability. Liability for fault is applied on notarial compensation liability. This is because fault is objective, notarization risks are reasonable, liability without fault is inappropriate and liability for fault is applied on notarial compensation liability in most countries.Notarial compensation liability must have four elements at the same time which are the subject, the act, the damage fact and the causality. The four elements are indispensable.In practice, compensation is usually caused by faulty notarial certificates. Notarial certificates with one of the following circumstances can be identified as faulty notarial certificates: the notarized acts are proved to be untrue or unlawful; the notarized facts are proved to be untrue or unlawful; the notarized documents are proved to be untrue or unlawful; it violate notarial procedure. In addition, under specified circumstances, a notarial certificate can be presumed to be faulty.As notarial compensation liability is a kind of experts responsibility in special tort, the principle of "who suits who proves" is not fully applicable to notarial compensation cases. The allocation of the burden of proof in notarial compensation cases should have its own applicable principles. But the Notarization Law and its relevant laws and regulations have not made any provisions about this yet and it should be standardized and improved in the future.In the third part, the author discusses various models of notarial compensation in different countries and regions. The author discusses the model in China in the recent time as well. About the procedure of notarial compensation, the Notarization Law does not give any provision and it need to be established in the future.Section 40 and 43 of the Notarization Law provides two different kinds of civil cases involving notary. The litigation status of notary organs is different in these two kinds of civil cases and should be analyzed separately.In notarial compensation cases, the experts responsibility and also the compensation liability of notary organs can be removed based on some defense subjects, they are: force majeure; self-defense, emergency hedge and self-help allowed by the law; damage results due to non-professional problems; no fault or no causality existing between behavior and damage results; the consent of the client or the stockholder who suffers damage results. In addition to the above defense subjects, the author thinks that under the framework of Section 44 of the Notarization Law, the compensation liability of notary organs must be scientifically analyzed depending on different circumstances and be treated differently.In the last part of this paper, the author gives some shallow recommendations to the perfection of the notarial compensation system of China. The author recommends that the perfection of the notarial compensation system of China should start from the following points: to unify the liability subject; to establish double penalty system; to clear the elements of compensation liability; to improve the compensation system and procedures; to allocate the burden of proof reasonably; to add the provision of limitation of exemption; to strengthen the building of professional ethics of the notary staff.