In Ho Chi Minh City, the number of civil transactions that have to go through notarization procedures is very large. In the past time, the forging of subjects and forging documents in notarization activities has taken place with increasingly sophisticated nature and tricks. However, when adjudicating related cases, the court cannot impose a compensatory obligation on notaries (CCVs) and notarial practice organizations. Why?
There is damage but there is no basis for notarizing compensation
In July, 2023, the High People's Court in Ho Chi Minh City held an appellate hearing, rejected the Procuracy's protest and the victim's appeal; sentenced defendant Trinh Truong Giang to 18 years in prison and Tran Thanh Hai to seven years in prison for fraud and appropriation of property.
Giang forged the signature of a land owner (in the authorization contract for Giang) to sell the land plot in Go Vap district, causing damage of more than 18.5 billion VND. Authorization contracts are drafted by CCV NCK and signed by CCV NDT.
According to the appeal of the High-Level People's Procuracy in Ho Chi Minh City, the two civil servants admitted to doing the wrong process and trusting the accused. The acts of the two CCVs violated the provisions of the Law on Notarization and showed signs of irresponsibility, causing serious consequences. The first-instance judgment that the Notary Public Office (VPCC) jointly compensates is contrary to the Law on Notary 2015 (Article 38 stipulates that notarial practice organizations must compensate for damage caused by CCV's fault).
The appellate court rejected the appeal on the grounds that "in the course of the trial, the first-instance court asked for clarification of the CCV's behavior and responsibilities of the VPCC, but the investigation results showed that there were not enough grounds for criminal prosecution. CCV. The Court of First Instance has recommended the Department of Justice of Ho Chi Minh City to take measures to handle the responsibility of public officials.
At the appellate stage, the Trial Panel also recommended that the Ho Chi Minh City Police Department investigate and clarify the role of the civil servant, if there are signs of crime, they should be handled.
This case is just one of the typical cases of failing to "could" the responsibility of CCV.
It is only at fault that you must compensate for the damage
The consideration of CCV's compensation liability has been stipulated in Article 38 of the Law on Notary. The obligation to compensate for damage when CCV violates resulting in compensation for notarization contracts is also specified in Article 600 of the Civil Code (notary practice organizations compensate customers, then request CCV to reimburse).
However, reality shows that it is not easy to bind the responsibilities of CCV and notarial practice organizations in cases where notarization requesters are deceived.
In April 2023, at the online seminar for thematic training "Answering problems in adjudication and guiding the application of the law by the Judicial Council", Deputy Chief Justice of the Supreme People's Court Nguyen Tri Tue had answer the joint responsibility for compensation of the notarial practice organization in the fraud case. Accordingly, the principle is that whoever appropriates, that person must compensate; if it is not proven that CCV accomplices, using the money appropriated by the accused, it is impossible to force the notarial practice organization to jointly compensate.
Regarding liability for damages in criminal cases, MSc Nguyen Duc Hieu, International University (Vietnam National University, Ho Chi Minh City), analysis: This liability only arises when there is an act and cause damage under the Civil Code or there is a criminal act and causes damage under the Penal Code.
Specifically, according to Clause 1, Article 48 of the Penal Code and Article 584 of the Civil Code, the liability to compensate only arises if and only when a criminal act is caused. Those who commit acts of infringing upon the life, health, honor, property, rights and other legitimate interests of others shall be responsible for compensating for damage.
Identifying fake behavior in notary
According to the report of the People's Committee of Ho Chi Minh City sent to the National Assembly's Law Committee in July, Ho Chi Minh City has the largest number of public accountants and notarial practice organizations in the country (7 notary offices and 110 VPCCs).
According to the People's Committee of Ho Chi Minh City, at present, the evils of forging documents, impersonating people to request notarization and participating in contracts and transactions at notary practice organizations are becoming more and more sophisticated. leading to some CCVs being afraid and afraid of responsibility. Meanwhile, the quality of CCV is not uniform in terms of practice skills, identification of fake and fraudulent acts in notarization activities.
Liability is excluded if the notarization process is fully followed
According to CCV Le Ngoc Tinh, No. 2 Notary Office of Ho Chi Minh City, the Law on Notary Publication prohibits notarization requesters from providing false information and documents. Persons providing false information and documents... may be administratively sanctioned or examined for penal liability and, if causing damage, must pay compensation.
Pursuant to Resolution 02/2022 of the Judicial Council of the Supreme People's Court, the liability to compensate for damage is for the case specified in Clause 1, Article 584 of the Civil Code when all the following factors are present: an act of infringing upon property, other legitimate rights and interests of others…; there is damage which is material damage, mental damage; there is a causal relationship between the damage occurred and the breach.
Therefore, when there is damage, it is necessary to prove that the CCV has committed an illegal act and this is the direct cause of the damage, before requesting the notarial practice organization to jointly compensate according to Article 38 of the Law. Notarized. If CCV intentionally participates in forgery to commit fraud, it is also guilty of a crime as an accomplice.
Lawyer Tran Thi Thanh Thao (Ho Chi Minh City Bar Association) further analyzed: The notary organization's liability to compensate for damage needs to be eliminated if CCV fully complies with the notarization process. At this point, the fault lies entirely with the notarization requester.
In case the investigating agency can prove that the CCV knows the fake papers but still notarizes the documents, the CCV may be administratively sanctioned according to Article 14 of Decree 110/2013 (amended and supplemented by Decree 67/2015) or was examined for penal liability for the crime of irresponsibility causing serious consequences according to Article 360 of the Penal Code.
Need to bring the professional insurance unit to participate in the proceedings
According to CCV Ninh Thi Hien (Head of the Office of Public Administration Ninh Thi Hien), two main principles widely recognized in countries around the world are the binding validity of contracts and compliance with agreements. That is, when the parties have entered into the contract, they must perform what they promised in the spirit of goodwill and honesty; help the parties trust each other to perform the establishment of the contract.
It is necessary to distinguish the act of CCV participating in forging documents with the use of fake documents provided by the notary requester. The law requires the parties to publicize the event of the establishment of a contract or transaction in front of a notary practice organization in order to make the parties responsible for what they provide. Any party that intentionally makes false or misleading promises to the other party to believe and establish it shall be responsible before the law.
According to CCV Hoang Manh Thang, Head of the Notary Division No. 2 in Ho Chi Minh City, it is not possible to force a notary practice organization to compensate or jointly compensate when the CCV performs notarization in accordance with the law and cannot know the tricks. deceit by law violators. Besides, CCV all buy compulsory professional liability insurance. Therefore, when adjudicating cases related to compensation liability in notary activities, the court must ask the insurance company to participate in the proceedings. Currently, there is no case in which the court has ordered the insurance company to pay compensation.
VPCC is not the guarantor for the defendant, so it does not have to pay compensation
In October 2019, the People's Court of Ho Chi Minh City at first instance sentenced two defendants Le Thi My Dung to 13 years in prison, and Le Van Tro to seven years in prison for fraud and appropriation of property. Dung hired people to pretend to be the landowner and Assistant to pretend to be the husband of the landowner, holding the real land papers that he had swapped to Phu Nhuan VPCC to make a contract of authorization to sell the land.
On the civil side, the court ordered the two defendants to jointly pay 4.9 billion VND to the victim; if the defendant is unable to compensate, the VPCC Phu Nhuan must compensate instead.
In May 2020, the appellate court did not force the VPCC to compensate on its behalf. According to the Appellate Court, in the case file, there are no documents or evidences to show that CCV, when performing notarization of authorization, knew that the defendants and related subjects had committed fraudulent acts to appropriate money from the court. the victim or has discussed, intentionally created conditions for the defendants and related subjects to commit fraudulent acts to appropriate property. Investigating agencies and procuracies do not force CCV to commit criminal law violations.
VPCC has no joint obligation to compensate this amount because VPCC is not the guarantor. The first-instance court ordered that in case the defendants are unable to pay this amount, the VPCC is obliged to compensate the defendants for the whole or the remainder of the obligation immediately after having authentic documents about the ability of the two defendants to pay is not legal.
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