Decree No. 135/2013/ND-CP Amending and supplementing the name and some articles of Decree No. 61/2009/ND-CP dated July 24, 2009 of the Government on the organization and operation of Notaries conducting pilot programs in Ho Chi Minh City.

DECREE

Amending and supplementing the name and some Articles of Decree No. 61/2009/NĐ-CP dated July 24, 2009 of the Government on the organization and operation of Notaries conducting pilot programs in Ho Chi Minh City.

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Pursuant to the Law on Organization of the Government dated December 25, 2001;

Pursuant to Resolution No. 24/2008/QH12 dated November 14, 2008 of the National Assembly on the implementation of the Civil Enforcement Law;

Pursuant to Resolution No. 36/2012/QH13 dated November 23, 2012 of the XIIIth National Assembly on continuing the pilot implementation of the Enforcement Officer system;

At the proposal of the Minister of Justice;

The Government promulgates this Decree amending and supplementing the name and some Articles of Decree No. 61/2009/NĐ-CP dated July 24, 2009 of the Government on the organization and operation of Notaries conducting pilot programs in Ho Chi Minh City.

Article 1. Amend the name of Decree No. 61/2009/NĐ-CP dated July 24, 2009 of the Government on the organization and operation of Notaries conducting pilot programs in Ho Chi Minh City as follows:

Decree on the organization and operation of Notaries conducting pilot programs in certain provinces and centrally governed cities.

Article 2. Amending and supplementing some Articles of Decree No. 61/2009/NĐ-CP dated July 24, 2009 of the Government as follows:

1. Amend and supplement Article 1 as follows:

"Article 1. Scope of Regulation

This Decree stipulates about Notaries, Notary Offices; scope, procedures for performing tasks of Notaries; handling complaints and reports and supervision over the activities of Notaries conducting pilot programs in certain provinces and centrally governed cities.”

2. Supplement Article 2a as follows:

“Article 2a. Notary

A Notary is a person who meets the criteria, appointed and granted authority by the State to perform tasks as prescribed in this Decree and relevant laws.”

3. Amending and supplementing Article 2 as follows:

"Article 2. Interpretation of Terms

In this Decree, the following terms are understood as follows:

1. An original copy is a document established by a Notary recording events and actions that can be used as evidence in trials and other legal relations.

2. Service of process is the act of notifying and delivering court documents and civil enforcement agency documents performed by a Notary in accordance with the law.”

4. Amending and supplementing Clause 2, Article 7 as follows:

“2. Fees for establishing original copies and verifying conditions for enforcement shall be agreed upon between the requesting party and the Notary Office based on the work performed or hours worked.

The Notary Office and the requesting party may also agree on additional actual expenses incurred, including travel costs; service fees for information-providing agencies if applicable; costs for witnesses, participants, or other costs if applicable.”

5. Amending and supplementing Point c Clause 3 and Clause 6, Article 15 as follows:

“c) Notary business secretary is an employee of the Notary Office assisting the Notary in performing legal business tasks as prescribed. The Notary business secretary must meet the criteria specified in Clause 1, Clause 2, and Clause 6 of Article 10 of this Decree and must have at least a college degree in law.

6. Information and reporting system of the Notary Office shall be implemented as follows:

a) Quarterly and annually, the Notary Office shall report to the Department of Justice and the Civil Enforcement General Department, Ministry of Justice on its organization and operations.

Semi-annually and annually, the Department of Justice shall report to the provincial People's Committee and the Ministry of Justice on the organization and operations of Notary Offices in the locality.

In addition to regular reports, the Notary Office shall submit ad hoc reports as required by the Department of Justice and the Civil Enforcement General Department, Ministry of Justice; the Department of Justice shall submit ad hoc reports as required by the provincial People's Committee and the Ministry of Justice.

Annually, the provincial People's Committee shall report to the Ministry of Justice on the implementation of the Notary system pilot program in the locality.

b) In addition to the organizational and operational reports as provided for in Point a Clause 6 of this Article, the Notary Office shall implement reporting to serve inspection, examination, supervision, financial management, and tax control according to the law.

c) The Ministry of Justice shall specify accounting books, business forms, information, and reporting systems of the Notary Office.”

6. Amending and supplementing Article 21 as follows:

“Article 21. Authority and Scope of Service of Process

1. The Notary Office has the right to negotiate to serve court documents and civil enforcement agency documents at the provincial or centrally governed city level where the Notary Office is located, including: Notice, summons, invitation, decision to bring cases to trial, judgment, decision in cases where the parties are absent from the trial of the court; decision on enforcement, notice, summons of the civil enforcement agency. In necessary cases, based on the request of the court or the civil enforcement agency, the Notary Office may negotiate to serve other types of documents and papers.

2. Notaries have the right to serve court and civil enforcement agency documents as stipulated in Clause 1 of this Article outside the provincial or centrally governed city level where the Notary Office is located.”

7. Amend and supplement Article 24 as follows:

“Article 24. Agreement on Service of Process

1. The agreement on service of process is concluded between the Notary Office and the civil enforcement agency or the court in the form of a service contract under which the court or the civil enforcement agency transfers all types of documents agreed upon to the Notary Office for service, and the Notary Office cannot refuse when requested to serve. The service contract includes the following main contents:

a) Documents to be served;

b) Contract performance period;

c) Service procedure;

d) Rights and obligations of the parties;

đ) Service fee.

2. One civil enforcement agency or one court may only enter into a service contract with one Notary Office. A Notary Office has the right to enter into service contracts with multiple civil enforcement agencies or multiple courts within the province or centrally governed city where it is located.”

8. Amend and supplement Article 25 as follows:

“Article 25. Authority and Scope of Establishing Original Copies

1. Notaries have the right to establish original copies of events and actions as requested by the parties, except for cases prescribed in Article 6 of this Decree; cases violating security and defense regulations; violating privacy as prescribed in Article 38 of the Civil Code; cases within the notarization authority of notarial organizations or certification authority of people's committees at all levels, and other cases as prescribed by law.

2. Notary offices may establish notarized records of events and actions occurring within the province or centrally governed city where the notary office is located.

9. Amend and supplement Clause 5 of Article 26 as follows:

“5. Within no more than two working days from the date of receiving the notarized record, the Department of Justice must register it in the notarized record book. The Department of Justice has the right to refuse registration if it finds that the establishment of the notarized record is beyond its authority, does not fall within the scope of notarized records as prescribed in Article 25 of this Decree; the notarized record is not submitted for registration within the time limit stipulated in Clause 4 of Article 26 of this Decree. The refusal must be immediately notified in writing to the notary office and the person requesting the establishment of the notarized record, specifying the reasons for refusing registration.

A notarized record is considered valid when registered with the Department of Justice.

10. Amend and supplement Article 30 as follows:

“Article 30. Authority and Scope of Verification of Execution Conditions

Notaries have the right to verify execution conditions related to the execution of judgments that fall within the jurisdiction of civil enforcement agencies in the province or centrally governed city where the notary office is located. When conducting verification, notaries have the right to verify outside the province or centrally governed city where the notary office is located if the parties reside or have assets in that locality.

11. Amend and supplement Article 31 as follows:

“Article 31. Procedures for Verifying Execution Conditions

1. Based on requests and agreements regarding the verification of execution conditions, the Director of the Notary Office issues a decision to verify; the decision must clearly state the basis, content of verification, and be recorded in the case registry.

2. Verification is conducted through written requests or directly. When verifying directly, notaries present their Notary Card, announce the decision, and must prepare a record of the verification. In necessary cases, notaries have the right to invite specialized agencies or experts to clarify the contents needing verification.

Other provisions of laws on civil enforcement also apply to the verification of execution conditions.

3. State Treasury, Social Insurance, land registration agencies, secured transaction registration agencies, other property registration agencies, and relevant organizations and individuals must comply with notaries' requests for verification of execution conditions and bear responsibility for the content of the information provided.

4. The Ministry of Justice shall take the lead and coordinate with the State Bank of Vietnam to guide notaries on verifying execution conditions at credit institutions.

12. Amend and supplement Clause 2 of Article 34 as follows:

“2. Notaries may organize the execution of cases specified in Clause 1 of this Article outside the district or county where the notary office is located if the parties have assets, reside, or have other conditions outside the district or county where the notary office is located. The Ministry of Justice shall provide guidance in cases where notaries execute judgments based on their authority involving assets arising outside the province or centrally governed city where the notary office is located.

13. Amend and supplement Article 36 as follows:

“Article 36. General Procedures for Enforcement by Notaries

1. Notaries implement enforcement procedures according to the provisions of this Decree. Where this Decree does not provide, the provisions of the law on civil enforcement shall apply.

2. Notary offices and civil enforcement agencies must cooperate with each other in providing information, notifications, verifying execution conditions, applying security measures, enforcing judgments compulsorily, and settling enforcement fees.

If the judgment debtor is entitled to multiple enforcement orders in the same judgment or decision by one obligor, the judgment debtor may only request either a civil enforcement agency or a notary office to enforce all orders simultaneously at the same time. If the enforcement orders are by different obligors, the judgment debtor may simultaneously request a civil enforcement agency and a notary office to enforce each order separately.

If there are multiple judgment debtors in the same judgment or decision, some of whom request a civil enforcement agency to enforce, while others request a notary office to enforce, then the civil enforcement agency and the notary office must cooperate in enforcing the judgment.

For cases that have been enforced by a civil enforcement agency but subsequently the parties submit a written request to the civil enforcement agency to stop enforcement and request a notary office to enforce, or vice versa, the request must specify the previous enforcement results, the new enforcement requirements, and the reservation of previous enforcement results (if any). The notary office and the civil enforcement agency may accept the debtor's reservation of previous enforcement results as a basis for continuing enforcement.

3. The Director of the Civil Enforcement Agency of the province or centrally governed city where the pilot program of notaries is implemented shall be responsible for guiding cooperation in enforcement between civil enforcement agencies and notary offices and among notary offices within the locality.

14. Amend and supplement Article 40 as follows:

“Article 40. Application of Compulsory Measures in Cases Requiring Security Forces

1. In cases where compulsory enforcement requires mobilizing security forces, the notary office must report and seek opinions from the Head of the Civil Enforcement Directive Board of the district where the notary office is located.

2. Based on the opinion of the Civil Enforcement Directive Board, the notary office prepares a plan for compulsory enforcement, reports to the Director of the Civil Enforcement Agency, along with the enforcement file for the Director of the Civil Enforcement Agency to examine, approve the enforcement plan, and issue a decision on compulsory enforcement.

Within five working days from the date of receiving the request from the Notary Office, the Director of the Civil Enforcement Agency shall examine and approve the enforcement plan and issue a decision on compulsory execution; in cases where immediate compulsory measures need to be applied, the Director of the Civil Enforcement Agency shall provide comments within one working day from the date of receipt of the request from the Notary Office.

In case of disagreement, a written response stating the reasons shall be provided.

After approval and issuance of the compulsory execution decision, the notary shall carry out the compulsory execution in accordance with the provisions of civil enforcement laws and this Decree's provisions on compulsory execution.

15. Amend Article 41 as follows:

"Article 41. Costs of Compulsory Execution

1. The person subject to enforcement and the person entitled to enforcement shall bear the costs of compulsory execution as prescribed by civil enforcement laws.

2. The notary shall bear the costs of compulsory execution if the execution must be repeated due to the notary's fault."

16. Amend and supplement Clause 1, Article 42 as follows:

"1. The amount of money collected from a case shall be paid by the notary to the person entitled to enforcement according to the request document of that case after deducting the enforcement costs borne by the person subject to enforcement as prescribed by civil enforcement laws. The remaining amount shall be returned to the person subject to enforcement by the notary."

17. Amend and supplement Article 45 as follows:

"Article 45. Handling Complaints and Disputes Related to Notarial Activities

1. Parties and interested parties have the right to lodge complaints against decisions and actions of notaries, heads of notary offices in performing notarial tasks.

2. Complaint handling shall be carried out as follows:

a) For complaints regarding civil enforcement, the head of the notary office shall handle the first complaint against the actions and decisions of notaries under their office within fifteen days from the date of receipt of the complaint. If dissatisfied with the decision of the head of the notary office, the complainant may appeal to the Director of the Civil Enforcement Agency of the province or centrally-administered city where the notary office is located. The Director of the Civil Enforcement Agency shall handle the second-level complaint within thirty days from the date of receipt of the complaint. The decision of the Director of the Civil Enforcement Agency shall take effect.

The Director of the Civil Enforcement Agency of the province or centrally-administered city where the notary office is located shall handle the first-level complaint against the actions and decisions of the head of the notary office within thirty days from the date of receipt of the complaint. In case of dissatisfaction with the decision of the Director of the Civil Enforcement Agency, the complainant may appeal to the Director General of the Supreme Enforcement Agency - Ministry of Justice. The Director General of the Supreme Enforcement Agency, Ministry of Justice, shall issue a second-level decision within forty-five days from the date of receipt of the complaint. The decision of the Director General of the Supreme Enforcement Agency, Ministry of Justice, shall take effect.

In necessary cases, the Minister of Justice may review a decision on a complaint about enforcement that has taken effect.

Other provisions on handling complaints about enforcement shall be implemented in accordance with the provisions of civil enforcement laws.

b) The handling of complaints regarding the service of court documents shall be carried out in accordance with the provisions of civil, criminal, and administrative procedural laws.

c) For other complaints related to notarial activities, the Director of the Department of Justice of the province or centrally-administered city where the notary office is located shall issue a first-level decision within thirty days from the date of receipt of the complaint. In case of dissatisfaction with the decision of the Director of the Department of Justice, the complainant may appeal to the Minister of Justice. The Minister of Justice shall handle the complaint within forty-five days from the date of receipt of the complaint. The decision of the Minister of Justice shall take effect.

3. Disputes concerning the performance of contracts and compensation for damages outside contracts related to the performance of notarial tasks shall be resolved by competent authorities in accordance with the provisions of the law."

18. Amend Article 47 as follows:

"Article 47. Handling Accusations in Notarial Activities

The accusation and handling of accusations in notarial activities shall be carried out in accordance with the provisions of the Law on Accusation and related documents."

19. In Decree No. 61/2009/NĐ-CP dated July 24, 2009 of the Government, the phrase "Ho Chi Minh City" shall be amended to "province or centrally-administered city where pilot implementation of the notary system takes place".

Article 3. Effectiveness and Responsibility for Implementation

1. This Decree shall take effect from December 5, 2013.

2. For cases that have been partially executed by notaries before the effective date of this Decree and in compliance with the law, the results of such execution shall be recognized; subsequent execution must comply with the provisions of this Decree.

3. The Minister, Heads of Ministries equivalent to ministries, Heads of agencies under the Government, Chairmen of People's Committees of provinces and centrally-administered cities shall be responsible for implementing this Decree.

4. The Ministry of Justice, within its scope of duties and powers, shall coordinate with the Supreme People's Court, the Supreme People's Procuracy, and relevant ministries and sectors to guide the implementation of this Decree./.