LEGAL NEWSLETTER NO.08 - 09/2020: FORM OF THE AUTHORIZATION DOCUMENTS IN THE CIVIL PROCEDURE

SECTION 1: RESEARCH AND DISCUSSION

FORM OF THE AUTHORIZATION DOCUMENTS IN THE CIVIL PROCEDURE

According to Civil Procedure Code 2015, individuals and organizations have the right to authorize another person to represent them to participate in the trial. The authorization must be made in writing and notarized and authenticated only in case of the applellate procedure. However, in reality, there are still many different perceptions leading to the inconsistent application of the law provisions regarding the form of the power of attorney (POA), even within the Court sector.

In this article, the current law provisions on the form of written authorization to participate in the proceedings will be stated; the current situation and the reasons why the Court forces the involved parties to notarize and authenticate the authorization documents will be discussed, in order to make the recommendations to improve the current law provisions.

1. Forms of the POA to participate in the procedure of a civil trial

1.1. Regarding the authentication and notarization of the POA

According to Clause 2, Article 86 of Civil Procedure Code 2015 (CPC2015), “The proxy representatives in civil procedures shall exercise the procedural rights and obligations of the involved parties according to the written authorization”.

 “6. The authorization specified in clauses 3, 4 and 5 of this Article must be carried out under written authorizations that are lawfully notarized and authenticated, except for cases where such authorizations are formulated under the witness of the Judges or persons assigned by the Chief Justices. The written authorizations must contain the contents of the judgments/decisions on suspension/termination of the cases issued by the first-instance Courts that the involved parties authorized the proxy representatives to file appeals against.”Accordingly, the POA to participate in the procedure of a civil trial shall be made in writing. After reviewing all the articles in CPC2015, appellate is the only procedure that is compulsory for the POA to be authenticated and notarized (or established at the Court). Specifically, it is stipulated in Clause 6, Article 272 of the CPC2015 [Application for Appellate]:

Accordingly, it is stipulated in the CPC2015 that the POA to participate in the civil procedure is not compulsory to be authenticated and notarized, except for cases of authorization to carry out the appeal procedure. However, in reality, there are so many cases leading to the misunderstanding that the notarization and authentication of the POA are compulsory, as most of Courts only accept the POA which are notarized or authenticated.

1.2. Is the POA to participate in civil procedure an “authorizing letter” or an “authorizing agreement”?

The POA to participate in civil procedure is always established as an “authorizing letter” or an “authorizing agreement”. “Authorizing letter” and “authorizing agreement” mentioned in this article are best distinguished through the following legal features: “Authorizing letter” needs to be authenticated the authorizer’s signature while “authorizing agreement” needs to be authenticated and notarized the involved parties’ signatures and the content of this document.

It is mentioned in the CPC2015 that the authorization must be made in writing but there is no regulation on the form of this document. Therefore, the Courts shall accept both “authorizing letter” and an “authorizing agreement”. However, since the Circular No. 01/2020/TT-BTP[1] of the Ministry of Justice took effect on April 20, 2020, the notary offices and the agencies competent to notarize and authenticate are not allowed to notarize and authenticate the “authorizing letter” in case this letter is used in civil procedures. Specifically, according to Article 14 of Circular 01/2020/TT-BTP of the Ministry of Justice, the signatures on the “authorizing letter” can only be authenticated in 04 cases:

- Authorization for submission and receipt of documents unless otherwise specified by the law;

- Authorization for receipt of pension, postal parcel, allowances and benefits;

  - Authorization for housekeeping;

- Authorizing household members to loan in Vietnam Bank for Social Policies.

The “authorization letter” not falling into these cases shall not be authenticated the signatures. The requestors for authentication must comply with the procedures for authentication of contracts and transactions.

Circular No. 01/2020/TT-BTP dated March 03, 2020 of Ministry of Justice is the elaboration of Decree No. 23/2015/NĐ-CP dated February 16, 2015 of the Government on issuing copies from master registers, certification of true copies from originals, authentication of signatures and contracts. While Decree No. 23/2015/NĐ-CP allows the signatures in the “authorization letter” to be authenticated if the empowerment is without payment and responsibilities undertaken by attorney in fact and bearing no relation to transfer of ownership of assets and real estate use rights[2], Circular No. 01/2020/TT-BTP limits the scope of Decree No. 23/2015/NĐ-CP and allows the signatures on the “authorizing letter” to be authenticated only in 04 cases stipulated in Article 14 of this Circular.

It can be clearly understood that Article 14 of Circular No. 01/2020/TT-BTP is not only contrary to CPC2015 but also inconsistent with Decree 23/2015 / ND-CP which is the specialized legal document with higher legal effect. According to the principle of applying the legal documents, in case there are the differences among the legal documents providing an issue, the documents with higher legal effect shall be applied. In this case, Decree No. 23/2015/NĐ-CP should have taken priority and the involved parties’ signatures in the “authenticate letter” to participate in the civil procedures are allowed to be authenticated under the requests of the involved parties.

However, in reality, the notary offices and the agencies competent to notary don’t “dare” to authenticate the signatures in the “authentication letter” to participate in the civil procedures due to being afraid of making mistakes and not complying with Circular No. 01/2020/TT-BTP of the Ministry of Justice. This obstacle has not been removed so far which leads to the confusing situations where the Courts accept the “authentication letter” to participate in the civil procedures while the notary offices and the agencies competent to notary don’t carry out the procedure of authenticating the signatures in it.

2. The matter of fact and the reasons why the Courts request the involved parties to notarize and authenticate the POA:

The civil procedure law does not require authorization documents to be notarized or authenticated (except in the case of authorization to exercise the right to appeal). However, the reality is that most courts only accept the status of the authorized person to participate in the proceedings when the authorization document is notarized or authenticated.

According to the author, this is unnecessary and half-hearted caution of the courts leading to the risk of the interests of the involved parties being violated.

Why is it a half-hearted caution, according to the author?

In judicial practice, in case a legal entity authorizes another person to participate in the civil procedures, the authorization documents only need to be signed by the legal representative of that legal entity and sealed. Different from the authorization documents among the individuals, such authorization documents shall be accepted by the Court without the authentication or notarization. It can be inferred that the Courts’ viewpoint is the authorization documents of legal entity have fully been guaranteed with its legal stamp which makes it exempted from the authentication or notarization. This point of view is extremely wrong, because it may have no legal validity if the signature in the authorization document is not legal representative’s one, although the stamp is legal. On the other hand, there is no ground for the Court to determine that the stamp belongs to the legal entity, especially when the Law on Enterprise 2020 was approved by the National Assembly on June 17, 2020 and is going to take effect on January 01, 2021. Accordingly, the regulation on announcing the seal sample has been abolished and it is possible that in the future, the regulations on registration of legal entity seal will also be abolished.

The Court has been cautious when requesting the involved parties being individuals to notarize or authenticate the authorization documents, but it does not force the involved parties who are legal entities to notarize or authenticate these documents. This is the half-hearted caution leading to the unequal cautiousness between the litigants being legal entities and the litigants being individual in the judiciary's perception.

Is the Court's caution beyond the legal requirements and threatens the interests of the involved parties?

The law enforcement principle is that State agencies are only allowed to do what the law allows. It is beyond the requirements of the law and leads to the danger of infringing upon the interests of the involved parties .when  the Court forces the involved parties to notarize or authenticate the authorization documents. In fact, there are many cases where the involved parties cannot go to notary organizations or the People's Committees (or diplomatic missions abroad for foreigners) to do the notarization and authentication due to geographical distance, physical disability, difficulty in moving, lack of identity documents or limited time... Besides, the organizations and agencies competent to notarize and authenticate have not yet agreed on the form of the written authorization (authorization letter or authorization contract) causing difficulties in procedures for notarization and authentication of authorization documents to participate in the civil procedures. Therefore, the fact that the Court forces the involved parties to notarize or authenticate the authorization documents will lead to their complicated situation.

The reason for the Court's caution (it is compulsory for the authorization documents to be notarized or authenticated) may due to the concerns that these documents can be forged leading to the will established in these documents is not the litigants’. Meanwhile, the legal consequences of the authorized person’s acts in the proceedings are influential. Any decision of the authorized person can directly and seriously affect the legitimate rights and interests of the involved party (Example: withdrawal of petition, change of request for action, negotiation leading to a reduction in obligations to other parties ...).

It is clear that the Court is right in questioning the truthfulness of a power of attorney before the irreversible consequences occur. In a positive way, this action of the Court will ensure the interests of the involved parties, avoid fake authorization.

3. Recommendations for improving laws:

It is clear that there is some differences between the regulations and the actual application of the law regarding the form of the authorization document in the proceedings. In order to ensure the transparency, consistency and reliability of the authorization procedures and authorization documents, the limitation of the risks for the involved parties due to counterfeiting, according to the author, the following changes should be applied:

Firstly, Article 14 of Circular No. 01/2020/TT-BTP dated 03/03/2020 of the Ministry of Justice should be abolished for the contrary to CPC2015 and Decree No. 23/2015/NĐ-CP dated 16/02/2015 of the Government and limiting the litigant's right to choose the form of the authorization.

Secondly, Civil Procedure regulations should be adjusted in the direction of allowing involved parties to choose one of the two following forms of authorization:

- Outside the Court: The authorization must be made in writing, notarized and authenticated. It can be POA or authorization contract.

- Authorization at Court: The authorization must be made in writing the witness of a judge or a person assigned by the judge. The judge confirms his/her witness by signed and sealed with the Court stamp in the authorization documents and clearly state: “I have witnessed the making of this authorization”

The article shows some author’s comments about the form of the authorization documents to participate in the proceedings at the Court in a civil case. We hope to receive comment from readers./.

Nguyen Cong Tin - FDVN LAW FIRM