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Notary Public

Notary Public

NOTARY PUBLIC

The office of a notary public had its origin in the ancient Rome. In 1279 notary public was introduced into England, the Archbishop of Canterbury was authorised by the Pope Nicholas III to appoint notaries in England. The Public Notaries Act 1801 empowered the Court of Facilities of the Archbishop of Canterbury to admit notaries to the profession. The Legal Services Act 2007 preserves the jurisdiction of the Court of Faculties to admit and enrol notaries in England and Wales. The Master of the Faculties acts as an approved regulator regarding to the notarial activities.

In accordance with the Halsbury’s Law of England, 5th ed, (London LexisNexis 2009) Vol 66, para 1412, , the meaning of a notary public is “a legal officer appointed by the Court of Faculties, whose general role, amongst other matters, to draw, attest or certify, under an official seal, documents which are intended for use in other jurisdiction. A notary may also prepare wills or other testamentary documents, note or certify transaction relating to negotiable instruments and draw up protests or other formal papers relating to shipping and the cargo conveyed therein. The office further confers the right to administer oaths and declarations.”

NOTARY PUBLIC IN QUEENSLAND

The name of “public notary” and “notary public” are used interchangeable in the Court of Faculties. Notary Public in the State of Queensland Australia is appointed by the Court of Faculties in England.

There is no law, statutory or otherwise prescribing the formal parts of a notarial act, it has been said in Brooke, A Treatise on the Office and Practice of a Notary in England, 9th ed (1939) p46 that the essential parts of a notarial acts in public form are:

“first, the title, the date and place of execution, the names of the notary, parties and witnesses, and a statement of the fact of the parties appearing before the notary and of their reason for doing so; second, the document or transaction which is the subject of the act; third, a statement to the effect that the instrument was read to the parties and approved by them; fourth, the signatures of the parties and witnesses; and, fifth, the signature and seal of the notary himself.

NOTARY IN THE PEOPLE’S REPUBLIC OF CHINA

The Legislation was passed in 2005 and commenced on 1 March 2006. The third amendment was passed on 1 September 2017.

In accordance with article 2 of the Legislation, notarization means certifying the authenticaity and legality of a legal act, a document or a fact of legal significance according to the statutory procedures.

Unlike in Australia, a notary in China upon request, may perform a board range of notarial acts. Article 11 provides that a notary in China may perform the following notarial acts:

  1. contract;
  2. inheritance;
  3. authorization, declaration, bestowal, will;
  4. distribution of property;
  5. bidding and tendering, auction;
  6. marriage status, kindred relationship, adoption relationship;
  7. birth, existence, death, identity, experience, education background, degree, job title, professional technical title, having or not having illegal and criminal record;
  8. articles of association;
  9. preservation of evidence;
  10. signature, seal and date as indicated in a document, duplicate or photocopy of a document conforming with the original document; and
  11. other matters that a natural person, legal person or any other organisation voluntarily requests for notarization.

Article 28 of the legislation provides a notary when performing notarial acts, must examine the following:

  1. the identity of the party concerned, the qualifications for requesting for the notarial act and the corresponding rights;
  2. whether the documents are complete, whether the meanings are clear and whether the signature and seal are complete;
  3. whether the certification materials are authentic, lawful and adequate; and
  4. whether the matter under request for notarization are genuine and lawful.

NOTARY IN MALAYSIA

In Malaysia, a Notary Public is appointed by the Attorney General of Malaysia under the Notaries Public Act 1959 (Act 115) for a tenure of two years, and to practise within a particular designated territory.

The functions of the Notary Public includes:

    1. To draw or prepare any instrument relating to any real or personal estate, or any legal proceeding;
    2. To draw or prepare any instrument of transfer or charge relating to Real Property;
    3. Take instructions or draw or prepare any papers on which to found or oppose a grant of probate or of letters of administration;
    4. Take the declaration of an attesting witness to prove the execution of any will or codicil, deed, or instrument in writing;
    5. Preparation of “ship’s protest” and protests concerning demurrage and other commercial documents.

(b) Authenticate a Power of Attorney (Section 3 of the Powers of Attorney Act 1949( (Act 424))

(c) Take and receive Statutory Declaration for use outside of Malaysia (Section 2 of the Statutory Declaration Act 1960 (Act 783), read together with and subject to Section 4 of the Notaries Public Act)

(d) Notarization of Public Document (with the intention of pursuing the Apostille Procedure, i.e. issue by the Department of Foreign Affairs of certain countries of Apostille Certificate (stamped or attached to the Public document)), in lieu of Legislation (in accordance with and for countries which have ratified the Hague Convention – Malaysia is not a party to the treaty and therefore cannot pursue apostille procedures, and have to resort to a more complicated legislation procedure)

(e) Notarization of Document (with the intention of and as part of the process of pursuing Legalization Procedure) (for countries like Malaysia not adhering nor having ratified the Hague Convention)

NOTARY IN SINGAPORE

Notaries in Singapore are by appointment for a period not exceeding 12 months.  A notary public must be a practising advocate and solicitor for not less than 7 years before appointed.

The powers and functions of a notary public are ordinarily exercised by notary public in England.

A notary public may

  1.   Notarisation of documents;
  2.   Attesting signing or executing of documents;
  3.   Administer any oath or affirmation;
  4.   Certifying true copy;
  5.   Protesting bills of exchange; and
  6.   Entering a ship’s protest.

NOTARY IN TAIWAN

The Notary Act was commenced on 23 November 2009.

Notaries in Taiwan either serve in court or in their own offices.  All district courts and their branches have notary division.

Article 2 of the Act provides that Notaries have the authority to notarize juristic acts and facts related to private rights.  They also have the authority to attest private documents:

  1.  official documents in their original form that involve facts related to private rights and where the applicants indicate the documents will be used overseas; and
  2. the transcriptions or photocopies of official or private documents.

NOTARY IN INDIA

The Notaries Act 1952 came into force on 14 February 1956.

Notaries is appointed by the Central Government.

Section 8 of the Act provides that a notary may

  1.  verify, authenticate, certify or attest the execution of any instrument;
  2. present any promissory note, hundi or bill of exchange for acceptance or
    payment or demand better security;
  3. note or protest the dishonour by non-acceptance or non-payment of any
    promissory note, hundi or bill of exchange or protest for better security or
    prepare acts of honour under the Negotiable Instruments Act, 1881
    (XXVI of 1881), or serve notice of such note or protest;
  4. note and draw up ship’s protest, boat’s protest or protest relating to
    demurrage and other commercial matters;
  5. administer oath to, or take affidavit from, any person;
  6. prepare bottomry and respondentia bonds, charter parties and other
    mercantile documents;
  7. prepare, attest or authenticate any instrument intended to take effect in
    any country or place outside India in such form and language as may
    conform to the law of the place where such deed is entitled to operate;
  8. translate, and verify the translation of, any document, from one language
    into another;
  9. any other act which may be prescribed.

 

The Act empowers a notary to as a Commissioner to record evidence in any civil or criminal trial if
so directed by any court or authority or act as an arbitrator, mediator or conciliator, if so required (refer to ss8(ha) and ss8(hb) of the Act)