Công văn 842/HTQTCT-CT

To: Departments of Justice of provinces and central-affiliated cities

On February 16, 2016, the Government promulgated the Decree No. 23/2015/ND-CP on issuance of copies from master registers, issuance of certified true copies from originals, authentication of signatures and contracts (hereinafter referred to as Decree No. 23/2015/ND-CP) After over 1 year of implementation of the Decree No. 23/2015/ND-CP the authentication activity is basically on right track. However, depending on the management on authenication and the refelection of the Consular Agency of the Ministry of Foreign Affairs on whether to receive a number of papers autheticated unconformably with current laws, the Agency of Civil Status, Nationality and Authentication requests Departments of Justice of central-affiliated cities and provinces to guide the authenticating authorities through the following contents:

1. Regarding certification of true copies from originals

As prescribed in clause 1 Article 19 of Decree No. 23/2015/ND-CP in principle, the applicant for certification of true copies must be responsible for the contents, the validity and lawfulness of the originals used as basis for certification of true copies. As the result, during the certification of true copies from the originals, a number of authenticating authorities have not check carefully the originals used as the basis for certification of true copies and leads to the authentication of even unconformable originals. Especiallly, Investigating security offices of the Ministry of Public Security have recently found a lot of papers of Chinese people which are forged for application for the permits to work in Vietnam (including qualifications and criminal records). Thus, the Department of Justice shall request authenticating authorities to compare carefully the copies and the originals before granting authentication. If there is any suspicion of the lawfulness of the original, the authenticating authority shall request relevant agencies, organizations, and individuals to provide necessary information to verify the legality of the paper/document submitted for authentication (as prescribed in clause 5 Article 9 of Decree No. 23/2015/ND-CP); if the original is found to be issued unconformably or forged, the authenticating authority shall reject the application for authentication and file a record of impoundment and send the paper/document to a competent agency for handling according to law.

2. Regarding consular legalization before application for certification of true copies from originals, authentication of signatures of translators of documents issued, authenticated or certified by competent foreign authorities

As prescribed in clause 1 Article 20, clause 5 Article 32 of Decree No. 23/2015/ND-CP before the application for certification of true copies from the originals or authentication of signatures of the translators, papers and documents issued, authenticated or certified by a competent foreign authority must be consularly legalized, except for case of excemption from consular legalization according to an international treaty to which Vietnam is a signatory or according to the principle of reciprocity and cases specified in Article 6 of Circular No. 20/2015/TT-BTP dated December 29, 2015 by the Ministry of Justice detailing and guiding the implementation of a number of articles of the Decree No. 23/2015/ND-CP.

Thus, the Department of Justice shall request authenticating agencies and organizations to comply with such regulations. To be specific, apart from cases of excemption, the certification of true copies from originals and the authentication of signatures of translators of papers and documents issued, authenticated or certified by competent foreign authorities which have not been consularly legalized are fobidden.

3. Authentication of signatures in papers and documents

- Recently, a number of People’s Committees of districts and Notary Office have granted authentication of signatures in papers and documents having contents like: guarantee of no marriage record (which is similar to the Affidavit of Single Status); application for verification with contents similar to the birth certificate, etc. Though such papers are not specified in Article 25 of Decree No. 23/2015/ND-CP their contents are civil status-related papers that are prescribed by law to be issued using the forms like the "Marriage Status Verification", "Birth Certificate", etc. Departments of Justice shall guide the regulatory agencies through the authentication. Any person applying for authentication of signatures in the abovemention papers must be requested to comply with regulations on civil status. Such papers must not received signature authentication.

- Point a clause 1 Article 24 of Decree No. 23/2015/ND-CP prescribes that the authenticator shall fully write testimonies for authentication of signatures using the form provided in the Annex enclosed with Decree No. 23/2015/ND-CP and Circular No. 20/2015/TT-BTP; however, a number of authenticating authorities failed to comply with such regulation. Departments of Justice shall direct and guide authenticating authorities to fully write testimonies for authentication according to regulation.

4. Regarding authentication of contracts

Article 35 of Decree No. 23/2015/ND-CP prescribed that the applicant for authentication must take full responsibility for the contents, the lawfulness of the contract; the authenticator must be responsible for the time and location of contract conclusion; civil capacity, willingness, signatures or fingerprints of contracting parties. Such provision does not mean the authenticator is not responsible for the lawfulness and the contents of the contract. Any official of commune level, with normal educational level and capacity, must consider rejecting the application for authentication as prescribed in clause 2 Article 35 of Decree No. 23/2015/ND-CP.

In order to protect the interests of the people and ensure the compliance with law, Departments of Justice shall direct and guide authenticating authorities to comply with regulations in Article 35 of Decree No. 35 of Decree No. 23/2015/ND-CP during the authentication of contracts. Accordingly, besides the verification of civil capacity and the willingness of the contracting parties; time and location of contract conclusion, the contents of the contract, especially contracts related to land use right, must be also checked. The People's Committee of commune, which is the local land administration agency, shall conduct inspection and verification to ensure the lawfulness of the land plot being the subject of the contract so as to uphold the responsibilities and powers of such land administration agency in the local area according to regulations in the Law on Land as well as to ensure benefits of the people involving in the contract.

Those are a number of important points in the implementation of Decree No. 23/2015/ND-CP Departments of Justice shall provide guidance for all the authenticators working for Justice Offices and People’s Committees of communes in local areas, ensuring the compliance with regulations in the Decree No. 23/2015/ND-CP./.