Writing down our lives - Preventive jurisprudence of truth and trust - A brief introduction to the notary system

Author: Notary Chen, Yu-Lun

Since one is born to explore the world up to the moment we close our eyes and reflect upon our lives, one's activities are closely related to the law at all times. For matters related to the interest of the parties, the notary system, apart from litigation, experiences authentic and written proof and serves the purpose of effectively preventing litigation dispute, preserving the evidence and planning and controlling risks in the life of law. This is a preventive jurisprudence of the new generation.

Source of the Notary System
The current international mainstream Latin notary started in ancient Rome. The historical background is that most of the social members at that time were illiterate. The emperor and the commoner both relied on notaries public who possessed legal knowledge and higher ethical levels to prepare documents of proof for them. So the notary public has been a well-respected profession since ancient times. For example, the father of the master Da Vinci, and both the father and brother of the well respected French writer Voltaire were all notaries public and enjoyed very high social status. Today, countries in the Continental Law system, such as Germany, France, Japan and the Republic of China adopt the Latin notary system. Compared to Anglo-American notarization under the Marine Law system, where only the parties' signatures are authenticated, the Latin notary provides a more refined and sound professional service.

The notary provides enduring preventive jurisprudence. The documents prepared have legal validity internationally and serve the functions of preventing disputes, protecting private rights, preserving evidence and planning national legal lives. It is widely used by people internationally and the system is getting more and more sound.

Value of Notarial Certificate
The Chinese word "certificate" is the combination of "word" and "registration", which means recording the words. The notarization is proof by a fair person. In a broad sense, notarization means notarization and authentication. To put it simply, notarization is the procedure of producing a notarial certificate by a notary public after the notary public personally experiences an act of law and fact of private right. Authentication refers to the real procedure by a notary public to certify the identity and signature of the signatory of the document. There are many types of notarized and authenticated documents. Basically, in any non-litigious matter related to civil and commercial laws, any legal act can be notarized and authenticated as long as it is not in violation of law and public order or is not invalid.

The notary public is an independent third party and does not work for any specific party. It performs its duties and exercises its public power on the side of the law, having the task of public interest and fairness. So when the public requests notarization or authentication, there are the following advantages:
1. A notarial certificate serves as evidence and can prevent litigation and reduce disputes.
2. If the notarial certificate includes the compulsory enforcement provision, it is enforceable and also preserves the evidence, saving labor, time and fees for the parties.
3. Professional legal services can be received to prepare risk control planning.

The era of legal popularization has come - Common Cases

With the change of social activities and economic development, there are more and more opportunities to interact with international parties, and citizens' legal awareness is increasing. People need more and more notarization/authentication in their lives. This causes people to extensively use the notary system to prevent disputes and protect their own interest. Below are some common cases of notarization and authentication:
1. Housing Lease: If the lease contract is notarized and includes the compulsory enforcement provision, when the landlord encounters a tenant that delays in rental payment and refuses to vacate the property, he can apply for the compulsory enforcement with the notrial certificate from the court directly. Not only does this save the disadvantage of time-consuming litigation, it also protects the interest timely and avoids the shortcoming of litigation where "Justice delayed is justice denied".
2. Foreign and Cross-Strait Matters: With more and more international exchange events of all kinds, if anyone from the Republic of China wishes to go to Mainland China or overseas for marriage, immigration, real estate property purchase, study, work or litigation, government authorities of many countries require documents with notarization/authentication and signature by a notary public. For example: Affidvait to Single Status Facts, Bank Savings Statement, Power of Attorney, Police Criminal Record Certificate (Certificate of Good Standing)and etc. When Wen-Yang Wang filed a litigation about the overseas estates of the Yong-Ching Wang, the founder of Formosa Plastics Corporation, a Power of Attorney of his widow, Yue-Lang Wang, which was authenticated by a notary public, was used as a secret weapon to claim legal rights.
3. Intellectual Property Rights' Protection: If a party wishes to use litigation to ensure legal rights, using a notarial certificate for preserving evidence will have the power of proof that cannot be overturned in litigation. For example: The signer Jay Zhou submitted a authenticated statement of a written work completion as effective proof under the lyric and music copyright litigation. Another example: When Sina sued Sohu for infringement of copyright, it used a notarized fact on the web page as evidence and won the lawsuit. In addition, if a party finds out that the sale of a product on the Internet or in a store may have violated patent or trademark right, he/she may also ask the notary pubic to issue a notarial certificate about the facts of the sale of such products. These facts can be used to preserve evidence and are an indispensable tool for protection of intellectual property rights in the market. This helps with the court litigation procedure and can also avoid distortions by abusive litigation.
4. Preservation of Evidence about Statements on Community Networks: With the development of the Internet, we have arrived at the era of popularized creation and expression by ordinary persons. At the same time, people use community networks (such as Facebook, micro-blogging, blogs and other community forums) to express opinions and creations. In case of willful libel, insult or infringement of rights, the party can use notarized facts about the web pages to protect private rights and clarify legal relationships. The facts of infringement can also be timely preserved as evidence, which can be submitted to a court as proof in the future.
5. Pre-Nuptial Agreement: It is common for overseas nationals, especially entertainment stars, to enter into pre-nuptial agreementsfor agreeing on the distribution of properties, rights and obligations. It is to control and manage the major risk of divorce in advance. However, due to conservative culture of our country, we are often hesitant to "Talk about the worst situation at first". It is not common to have pre-nuptial agreements, which leads to significant "fees for becoming single again". From a practical point of view, pre-nuptial communications based on the principles of mutual respect and understanding the other person's way of living and future plans will help both parties to maintain their marriage based on consensus. For example, it is known from media broadcasting that Terry Gou, CEO of Foxconn, signed a pre-nuptial agreement before marrying his wife Sing-Ying Tseng and had the agreement notarized, contemplating the significant decision of donating 90% of his property to public charity.
6. Will: Making a will is the final and most important lesson and plan in life. It is also an expression of love for one's family. By making a will, one will make clear and proper arrangements about one's life plans, distribution of properties and medical wishes while still alive. This avoids disputes and confusion for descendants in the future. This also fully respects the free will of the deceased. In the past, many famous people passed away suddenly without making a valid will, such as Yong-Ching Wang and Shi-Ren Wen, resulting in cases of property distribution disputes among descendants and high amounts of estate taxes payable. This caused unnecessary problems. This also shows that people in our country do not like to talk about life and death and do not carry out an inspection and review of one's life at any time. So when unexpected accidents happen, there is only room for sighs and regrets. Those who made advance plans, such as Cheng-Fu Gu and Wan-Ling Tsai, their estate taxes were relatively lower. We also did not hear unfortunate stories about their decedents fighting over properties. In fact, in the Hospice and Palliative Care Act that was passed in 2000, the system of a "Living will" was actively promoted. Based on respect for medical wishes and life dignity of terminally ill patients, prior intention in writing to protect their interest is a life-long question that is worth our serious consideration.

No need to go to court for notarization. Protecting your rights is so easy.

Observing from the international trend, the system advancement and symbolization of value has integrated the notarization into people's daily lives. Under the current legislative system, in addition to court notary, people can also seek professional services from private notaries to achieve the same legal effect as court notary. This saves us the fear and helplessness when summoned to court. As the Spanish saying goes, "Opening a notary office is closing a court". This describes how notarization prevents disputes and reduces litigation. It is believed that, while satisfying the actual legal needs of the people and maintaining the quality and validity of notarial certificates, this tool of social credibility will advance with time and become the new mainstream for people to protect their rights.

This Article was synchronous published in the Vol. 49 of USI Newsletter.