| Notarization is an ancient method of proof in the history of Western Europe.Evolving to the present,the daily life of the people in Latin notary countries is closely related to notarization;The notarial industry not only occupies the largest share of the legal market,but also plays a pivotal role in social governance.Since the beginning of the Republic of China,although China has transplanted the Latin notary system,the system has not been able to exert the expected social governance effect.Since the 18th CPC National Congress,the Party Central Committee has gradually attached importance to social governance and has upgraded it to an important component of the modernization of the national governance system and governance capacity.Although China’s notarization system has been incorporated into the social governance system,it mainly assumes the role of supporting the judicial certification system,and its actual legal position is constantly falling,and urgently requires reform.The article uses 280 cases of "damage compensation liability of notarial disputes" as empirical analysis samples and establishes a database for analysis.The first-level indicators of database show that courts reduce the review of notarial acts;Notary institutions often fail to fulfill the obligation of examination and verification in the process of handling certificates;Courts at all levels are too active in their discretion;The case appeal rate,retrial rate,and petition rate are too high;There are inherent defects in the current notarization system;It is difficult for litigants or interested parties involved in litigation to safeguard their rights.The secondary-level indicators of database show that risks such as mandatory notarization and authorized notarization are too high,and the notarization system is not highly active;Notary institutions neglect the protection of the rights and interests of the parties and interested parties of notarization;The principle of fault responsibility of notarial institutions excessively eliminates its legal risks;Trial courts often seek exemptions for notarial institutions,and it is difficult for the plaintiff to win but easy to lose;It is difficult for rights defenders to investigate and affix the responsibility for notarial institutions through the Complaint-Handling Work;It is difficult to change the notarial certificate,and there is little hope for the notarial institution to correct its own mistakes.From the perspective of various evaluations,there are many shortcomings in the notarization system.The legal profession believes that notarization and the notarization system of organization are unclear;The credibility of notarization is not high:The value/function orientation of the notarization system is unclear;There are defects in the norms of notarial effectiveness;The notarization system faces many challenges.The questionnaire shows that the public has little understanding of notarization;The social value of notarization system is low;"Notary institutions have a high reputation but are prone to disputes due to defects in the certificates act;The court does not require notaries to be personally experienced,but requires high review obligations;The public expects courts to conduct substantive reviews of notarial acts and documents to strengthen accountability;The public also expects courts to strengthen supervision,strengthen the intensity of review,and improve the notary system to restrain notarial institutions and practitioners.Different research reports by courts show that courts believe that the power of notarial evidence is strong and needs to balance parties’ interests;Although there are many flaws in notarial evidence,they have to be fully accepted;The notarial evidence has higher probative force,and the court tend to exempt the Burden of Producing Evidence of the parties;Mandatory notarization is extremely valuable but subject to strict scrutiny.From legal dogmatic,it is found that China’s notarization system belongs to the category of non-litigation procedural law in terms of its nature;With the profound imprint of the publicization of private Law,it bears heavy responsibility of transferring the national management function to society;It has a certain judicial nature.From the vertical and horizontal perspective of the legal system,the connection between the notarization system and the Civil Procedure Law is loose,and the actual legal status is lower than the people’s mediation system and the arbitration system;the norm of probative force violates convention;The relationship with civil and commercial law is an organic combination,with the former being a procedural protection system and the latter being a distribution system of substantive rights and obligations:There are management relationship and security relationship between the notarization system,administrative law,and criminal law.From the perspective of theoretical basis,the most basic function of the notarization system is proof,and the medium through which the function of proof works is public documentary evidence,and the evidentiary effect of public documentary evidence comes from self certification.From the perspective of its own structure,the notarization system includes four parts:the notary law,the notarization act law,the notarization calligraphy law,and the notarization responsibility law.In the sense of comparative law,the notary system in China has shortcomings in the notary law,such as unclear legal identity,insufficient neutral status,qualifications,job granting,job removal,scope of authority,and overly loose constraints on job performance.In terms of the elements of notarial behavior,the main element lacks the restriction of personal freedom;In terms of power requirements,there are deficiencies in notarial power authorization,oath procedures,and liability insurance;In terms of the elements of meaning expression,relevant norms are unclear;In terms of the elements of legal effectiveness,there is a lack of norms for controlling the effectiveness of notarial acts;In notarial calligraphy,there is a lack of compulsory notarization,and there are incomplete and lax regulations regarding the production,issuance,custody,and submission of public certificates;In the notarial liability law,disciplinary responsibilities are relaxed,disciplinary organizations have established an unsupervised supervisor mechanism,and no unlimited liability system has been established in the field of civil liability.Reflecting on China’s notarization system,it is not difficult to discover its systematic defects.In terms of the operation mechanism of notarial power,notarial affairs are complex and difficult for the notarial industry to cope with;There is limited for external supervision and is difficult to integrate the notarial industry;Notarial justice dislocate its place and it is difficult for rights relief;The notarial institutions’ risk of liability for compensation is high.In terms of the subject of notarial legal relations,the current legislation assumes that the subject structure is too simple,and the negative effects of subject spillovers are not expected to be sufficient;There are conflicts within the organizational structure of notarial institutions;The independent handling of certificates by notaries undermines the constraints of the internal organizational structure;The procedural operation mechanism of notarial power undermines the procedural constraints of handling certificates.From the perspective of supporting,due to the lack of supporting civil and commercial factual laws,the development prospect of the notarization system is poor;due to the lack of support from administrative substantive laws,the notarization system is limp and flaccid;due to the lack of supporting criminal laws,the protection of the notarization system is too low;and due to the lack of supporting procedural laws,the operation is of the notarization system not smooth.The key to solving the aforementioned shortcomings of the notarization system lies in readjusting its legal value and repositioning it in the national legal structure.The true value of the notarization system is based on the protection of rights rather than the prevention of disputes.In terms of path selection,to change the weak position of China’s notarial system,it is necessary to uphold the concept of collaborative governance,adapt to the complex network system of social governance,and integrate notaries into the national leading social governance network system in a social node manner,making them an authoritative fortress of grassroots society:At the same time,adjust relevant theories,establish a theoretical system of preventive law,correct the current situation of misplacing the notarization system into the dispute resolution system,and build an independent dispute prevention mechanism with it as the core.In terms of legislative structure,it is necessary to systematically adjust the notarization system in China.In terms of concept adjustment,it is necessary to turn the dispute prevention to the right protection;In terms of system of organization,it is necessary to turn the institution system of organization to the freelance system of organization;In terms of qualification,it is necessary to turn the low requirements to the high standards;In the market,it is necessary to turn the voluntary notarization to the statutory notarization;In terms of procedure,it is necessary to turn the legal empowerment to the self empowerment;In terms of supervision,it is necessary to turn the administrative supervision to the multi-level supervision. |
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