Das Notariat in Japan
Abstract
The introduction of the notary statute in 1886 started the history of the modern Japanese notary system. It was strongly influenced by the French and Dutch models. In the year 1909, this notary statute was replaced by the current notary act influenced by the Prussian example. The Japanese notary is part of the large group of Latin notaries. Latin-type notaries are lawyers with a higher qualification who give independent and impartial advice, especially with difficult legal transactions. The “notary public” of the Anglo-Saxon legal system is mainly in charge of nothing but the authentication of signatures. Influences of the Anglo-Saxon notary were also absorbed in Japan.
Notaries (kôshô-nin) are seen as organs of the preventive administration of justice. They are appointed by the state and carry out state matters. Their fees are fixed by a scale of charges. Every notary is a member of a chamber of notaries and of the Japanese Notary Association (Nihon Kôshô-nin Rengô-kai). This association is a member of the International Union of Latin Notaries. Notaries are supervised by the Minister of Justice. The state is liable for damages caused by the negligence of a notary according to the rules of public liability.
The total number of notaries in Japan does not exceed about 545 notaries in 301 offices for a population of about 127 million people. In practice, virtually only former judges, prosecutors, and state officials are appointed notaries. A notary position is usually reached as one nears retirement age, which is between 60 and 65 years of age depending on the profession.
A notary is responsible for the attestation of legal acts and of facts connected with private rights, and for the authentication of private documents, articles of association, and electronic documents. Attestation (kôsei shôsho no sakusei) and authentication (ninshô no fuyo) differ as follows: for an attestation the notary draws up the document himself, while for an authentication he only testifies to the formation of a document by a certain person or to the conformity of a copy with the original.
The notary is not specially obligated to advise the parties. The only duties incumbent on him are the duty to examine (shinsa gimu) and the duty to inquire (chôsa gimu) in order to assure that he attests no illegal, void, or contradictable legal acts. The duties to examine and to inquire arise if the submission of an involved person, the notary’s own experience, or his former occupation raise a concrete doubt concerning the legality, validity, or non-appealability of the current assignment.
The scope of duties of a Japanese notary is narrower than that of his German colleague. The reasons for this are that fewer legal acts are to be attested, legal clerks (shihô shoshi) also attest and register, and it is not a system of signatures but of signature stamps.
Legal acts are attested in the fields of realty transactions, corporate law, family law, and law of succession; acceptances of debts, credits, drafts, and check protests; as well as security assignments to guarantee institutes, settlements, acts of sale, and donations (mostly concerning real estate). Current problems arise from credit contracts where the debtor is not present when the enforceable document is set up but is represented by the creditor. On the one hand, that allows the creditor to misuse his procuration and to put in the document an amount higher than what was arranged for with the debtor. On the other hand, the debtor runs the risk of failing to see that the mandate he gave can result in an executory title.
The attestation of facts linked to private rights applies to the attestation of the content of safe-deposit boxes that were opened because the user did not maintain the required procedure of contract termination; the fact of an invention in order to allow the proof of former use; the testimony of a completion action; the course of land limits; records of company general meetings; the compilation of asset lists; the sealing of insolvency assets; and the participation in the valuation of assets.
Attestation and authentication both demand proof of the identity of the client. Unless the notary is personally acquainted with the client, such evidence is usually provided by a special system that works without photos. Most Japanese own a name seal (jitsu’in), the impression (inkan) of which is registered officially, and a seal card (inkan câdo). The office responsible does not hand out a verification of this registration (inkan shômei-sho) unless the seal card is presented.
The notarial document is an executory title in case it contains a right to demand the payment of a certain sum of money or the performance of a certain amount of other fungible items or commercial papers, and if the debtor has submitted to immediate execution.
To assert a certain date, the notary stamps the current date as the "unalterable" date (kakutei hizuke) on a document signed in private. This date is thereby fixed as the date on which the document was drawn up.
Since 1998, a notary can attest affidavits (sensei ninshô).
Electronic documents can meanwhile also be authenticated (documents signed in private as well as articles of association), but only by notaries who were appointed to do this by the Minister of Justice.
In the international circulation of documents, the Japanese authentication is equivalent to that of many other legal systems. If the Japanese notary is not able to help, it is possible to call on a consul. Japan is a member of the Hague Convention abolishing the Requirement of Legalization for Foreign Public Documents.
(Englische Übersetzung durch d. Red.)
