On the morning of April 11, the 16th National Assembly discussed in the hall the draft Law amending and supplementing a number of articles of the Law on Notarization.
Major General Nguyen Minh Tuan - Director of Phu Tho Provincial Police (Phu Tho Delegation) - said that people are currently very interested in notarization activities in real estate transactions, while this field still has many problems.
The delegate said that it is not necessary to rigidly stipulate that all real estate contracts must be notarized. Instead, it is necessary to design a more flexible mechanism, which can be encouraged or discouraged depending on each case, so that people have the right to choose based on their actual needs.
According to Major General Nguyen Minh Tuan, an important issue that needs to be clarified is the nature of notarization: notarization in form or content.
Is notary responsible in transactions with suspicious issues related to violations? For example, is notary responsible for tax evasion in real estate transactions?", the delegate raised the question.
From there, the delegate proposed that the drafting committee study carefully, if notarization is not associated with responsibility in detecting and preventing violations, then it is not necessary to require it. At that time, people may only need to sign contracts according to the model guided by the State, fully fulfill tax obligations and have tax payment documents is enough.
Delegate Le Thanh Hoan (Thanh Hoa Delegation) said that the draft law supplements deposit transactions for real estate trading under the notary authority of notaries.
According to him, this is a content that needs to be clearly reported to the National Assembly, because according to the principle, Article 3 only stipulates that transactions that must be notarized are transactions that are regulated by law to be notarized, including transactions of buying and selling, transfer, donation, division of inheritance, capital contribution, mortgage with real estate objects.
For transactions that specialized laws do not stipulate that notarization is required, they must be carried out according to that specialized law.
Meanwhile, according to the provisions of law on land, housing, and real estate business, contracts of purchase, sale, donation, mortgage, and capital contribution for real estate and housing must be notarized and authenticated.
If deposit transactions for real estate trading are considered an inseparable part of real estate trading transactions, then of course this will be the type of contract that must be notarized. Meanwhile, deposit contracts for real estate and housing transactions are currently not required to be notarized or certified," said delegate Hoan.
Mr. Le Thanh Hoan said that in house purchase and sale deposit transactions, land use right transfer, many people may think that notarized deposit contracts will be optimal, ensuring the legitimate rights and interests of the parties. But in reality, it shows that there are many cases where sellers encounter many troubles because of notarized deposit contracts.
The Thanh Hoa Delegation delegate cited the basis of Article 328 of the Civil Code, if the buyer does not fulfill the obligations as committed in the deposit contract, the seller has the right to sell to another person and to date, there is no legal normative document prohibiting the seller from exercising this right.
However, it is not possible to notarize a land and house purchase contract when the party wishing to sell to another person is not the depositor in the case where the deposit contract has been notarized. Because the deposit contract has been notarized but has not been cancelled because disputes may arise.
The court only declares the notarized document invalid when there is evidence that the notarization violates the law. If there is no basis to request the Court to declare the deposit contract to be illegal, then it is clear that this notarized document is still valid until the parties jointly request the cancellation of the notarized contract," the delegate analyzed.
