Research On Issues Concerning Civil Liability For Torts Of Notary Organizations In China

The issue concerning civil liability for torts of notary organizations has been significantly influencing development of China’s notary industry. In particular, the case in which Notary Office of Xinmin City, Liaoning Province compensated for loss of interested party in one aspect reflects the problem that notary organizations has been in a disadvantageous position in litigations. Therefore, it is necessary and timely to analyze the issue of civil liability for torts of notary organizations in China by employing empirical analysis and historical investigation methods.In this paper, current situation of legislation on civil liability for torts in China is demonstrated through analyzing different situations prior to and after reform of notary system, and three insufficient aspects in legislation on civil liability for torts are pointed out: Firstly, due to various historical reasons, legislation on civil liability for torts in China has been being ignored and lagging behind legislation on other aspects of China’s notary system, which is specifically reflected in the following aspects: Connection between legislation on civil liability for torts and notary system in China is insufficient and unsatisfactory. As for legislation, it is believed that notary organizations should assume civil liability. However, in fact, there are still a large number of government-funded notary organizations with administrative and institutional systems. When such organizations are involved in payment of compensation, 5% of compensation has to be paid by financial allocation if insurers don’t pay such amount, in which case such compensation is paid by the country. In this circumstance, it is necessary to discuss whether such notary organizations assume civil or administrative liability. Secondly, there are significant disputes about types of civil liabilities for torts of notary organizations in China in theoretical circles. Some scholars believe that civil liability for torts of notary organizations should be liability for breach of contract; some believe that such liability should be general liability for torts; while some others believe that such liability should be special liability for torts. Thirdly, there exists no specific proportion of compensation for supplementary liability that should be assumed by notary organizations, which results in excessive judicial discretion and thus causes excessive liability for compensation assumed by notary organizations.Reasons for insufficient legislation on civil liability for torts assumed by notary organizations in China: Firstly, reform of notary system in China hasn’t been completed, and multiple elements such as notary organizations with administrative system, institutional system, cooperative system and partnership system still coexist. Secondly, due to the situation of “avoidance” in legislation on notary system, a uniform notary system has not been formed. After 15 years of reform on China’s notary system, coexistence of notary organizations with various systems is still the case today. In addition, the opportunity for unification of systems during legislation on notary system hasn’t been seized and a great chance has been lost. Now, it is extremely difficult to unifying systems of notary organizations due to various obstructions in many aspects.However, problems can’t be solved through avoidance, so problems and difficulties should squarely faced and surmounted, based on which legislation on liability for torts of notary organizations may be completed on a continuous basis: Firstly, systems of notary organizations in China should be unified, for which there are many disputes in academic circles. Some scholars believe that reform should be implemented based on “notary organizations-oriented” methods. Because of imbalanced economic development in China’s eastern and western parts, situations of notary organizations in various regions are different. Therefore, it is difficult to unify systems of various notary organizations on the level of notary organization due to entanglement and interdependence of various interests. So it seems easier to avoid such problems and implement reform on China’s notary system from the perspective of notary organizations. From the perspective of public credibility, a reform should be carried out on the level of notary organizations and relevant regulations in Notary Law of the People’s Republic of China should be implemented in order to ensure that notary organizations will not aim to make profit in reality, for which the best method is to unify systems of notary organizations by restructuring all notary organization in China and transforming them into notary organizations based on balance allocation. Secondly, type of civil liability for torts of notary organizations in China should be defined as general liability for torts. Thirdly, proportion of liability for compensation that should be assumed by notary organizations should be specified, which should be inversely proportional to degree of difficulty faced by notary organizations in fulfilling their obligations for investigation and verification and should be less than 50% of entire liability for compensation. China’s notary industry may develop in a sustainable, steady and healthy way only through continuous improvements of China’s legislation on civil liability for torts of notary organizations and unification of systems of various notary organizations in China.