Trách nhiệm bồi thường thiệt hại trong hoạt động công chứng theo pháp luật Việt Nam ttta

Tên tác giả: Hoàng Văn Hữu Tên luận án: Trách nhiệm bồi thường thiệt hại trong hoạt động công chứng theo pháp luật Việt Nam Ngành khoa học của luận án: Luật Kinh tế Mã số: 93.80.107 Tên cơ sở đào tạo: Học viện Khoa học Xã hội 2. Nội dung bản trích yếu Mục đích và đối tượng nghiên cứu của luận án: Mục đích nghiên cứu của luận án: Làm rõ cơ sở lý luận pháp luật về trách nhiệm bồi thường thiệt hại trong hoạt động công chứng, dựa trên cơ sở lý luận đó để đánh giá thực trạng các quy định pháp luật và thực trạng thực thi vấn đề bồi thường thiệt hại trong hoạt động công chứng. Phân tích những nguyên nhân, bất cập, những yếu kém, tồn tại trong việc thực hiện trách nhiệm bồi thường thiệt hại trong hoạt động công chứng. Từ đó tác giả đưa ra các giải pháp, kiến nghị có cơ sở lý luận, thực tiễn và có tính khả thi nhằm hoàn thiện pháp luật về trách nhiệm bồi thường thiệt hại trong hoạt động công chứng ở Việt Nam hiện nay. Đối tượng nghiên cứu của luận án: Hệ thống quy định pháp luật điều chỉnh trách nhiệm bồi thường thiệt hại nói chung như Bộ Luật Dân sự, Luật thương mại, Luật trách nhiệm bồi thường của Nhà nước…Và các quy định của pháp luật điều chỉnh vấn đề bồi thường thiệt hại trong hoạt động công chứng như: Luật Công chứng, luật kinh doanh bảo hiểm… Các phương pháp nghiên cứu đã sử dụng: Luận án vận dụng linh hoạt nhiều phương pháp nghiên cứu, điển hình một số phương pháp nghiên cứu sau: phương pháp luận biện chứng, phương 2 pháp thống kê, thu thập số liệu, phương pháp chuyên gia, phương pháp phân tích và tổng hợp lý thuyết, phương pháp xã hội học. Các kết quả chính và kết luận: Trong bối cảnh lý thuyết về trách nhiệm bồi thường thiệt hại trong hoạt động công chứng còn nhiều khoảng trống, chưa được nghiên cứu tận cùng, triệt để, phù hợp với bối cảnh Việt Nam thì những đóng góp nêu trên của Luận án là rất có ý nghĩa. Luận án đã làm phong phú thêm số lượng các công trình nghiên cứu lý luận và thực tiễn về trách nhiệm bồi thường thiệt hại trong hoạt động công chứng; đóng góp những quan điểm lý luận riêng về trách nhiệm bồi thường thiệt hại trong hoạt động công chứng; cung cấp những quan điểm, học thuyết quốc tế, nước ngoài về trách nhiệm bồi thường thiệt hại trong hoạt động công chứng. Đặc biệt, Luận án đã có những đề xuất về cơ sở lý luận và thực tiễn cho việc hoàn thiện pháp luật hiện hành về trách nhiệm bồi thường thiệt hại trong hoạt động công chứng theo hướng phù hợp với chủ trương của Đảng và Nhà nước ta về xã hội hóa hoạt động công chứng trong bối cảnh xây dựng nhà nước pháp quyền xã hội chủ nghĩa ở Việt Nam. Luận án có thể là cơ sở để các cơ quan quản lý nhà nước về hoạt động công chứng (Cục Bổ trợ Tư pháp, Phòng Bổ trợ Tư pháp…), Hiệp hội Công chứng viên Việt Nam, Hội Công chứng viên các tỉnh, thành phố trực thuộc Trung ương tham khảo, đề xuất sửa đổi, bổ sung Luật Công chứng nhằm đáp ứng yêu cầu, tầm nhìn quản lý hoạt động công chứng trong giai đoạn hiện nay và sau này ở Việt Nam. Luận án là tài liệu chuyên khảo, hữu ích cho công tác nghiên cứu, giảng dạy nghề công chứng tại Học viện tư pháp và các cơ sở đào tạo pháp luật ở Việt Nam.

VIETNAM ACADEMY OF SOCIAL SCIENCES

GRADUATE ACADEMY OF SOCIAL SCIENCES

HOANG VAN HUU

LIABILITY TO COMPENSATE FOR DAMAGE

IN NOTARIZATION ACTIVITIES ACCORDING

Graduate Academy of Social Sciences Vietnam Academy of Social Sciences

Science instructor: Assoc Prof PhD Nguyen Trung Tin

Review 1: Assoc Prof PhD Nguyen Hưu Chi

Review 2: Assoc Prof PhD Vu Thi Hai Yen

Review 3: Assoc Prof PhD Dang Vu Huan

The thesis will be defended in front of the Academy level doctoral thesis grading committee held at: Graduate Academy of Social Sciences - Vietnam Academy of Social Sciences, at…date…month…year…

The thesis can be found at:

National library of Viet Nam

Library of Graduate Academy of Social Sciences

INTRODUCTION

1 Rationale of the study

The Socialist Republic of Vietnam is in the process of implementing renovation and opening up the economy Resolution No 49/NQ-TW of the Politburo dated June 2, 2005 on the Judicial Reform

Strategy to 2020 [1] identified: “Building a model of state management of notarization in the direction that the State organizes only appropriate notary agencies; take appropriate steps to gradually socialize this work”

In the context of focusing on the market economy, the Government changes direction to building an integrity government, creates and socializes a part

of state power and expects the function of the notary agency will also change Firstly, under the modern market economy conditions, the economic management method of the Government will have changes, in which it will increase the indirectness and serviceness and require to meet two important requirements for the provision of law and credit; this is what the notary industry can provide

Notarization in 2014 which has been more than 14 years now, but has achieved remarkable results In particular, it is noteworthy that the first step has been taken to socialize notarization work, to build a nationwide notary network [2] If before the socialization of notary, the whole country has 131 Notary Offices and after implementing the Law on Notary 2006 the whole country has 625 notarial practice organizations After 5 years of implementing the Law on Notary in 2014, there are 1,202 notarial practice organizations in the whole country, of which there are 118 Notary Chambers and 1,084 Notary Offices Compared to the time before implementing the policy of socialization of notarial activities, the whole country increased by 1,002 organizations (an increase of more than 10 times); Compared to the time of implementation of the Law on Notary in 2006, the number of organizations increased by 514 (an increase of nearly 02 times)

In addition to the results achieved by the implementation of socialization of notarization activities such as: Citizens are given favorable conditions when going to notarization, there is no longer queues and crowding like in previous years when there was only Notaries work at Notary Public Chambers in a very small number; the state collects more taxes from notary activities; Notarized civil and economic transactions

rapid socialization of notarial activities, state management and

self-governance of notary social organizations also revealed many limitations, leading to unfair competition

The above context sets forth the requirement to study systematically and comprehensively the legal provisions on liability for damage compensation in notary activities; evaluate the advantages and limitations of the legal situation and the actual implementation of the issue

of compensation for damage in notary activities Thereby, the author of the thesis gives orientations and solutions to perfect the law and improve the effectiveness of law enforcement on liability for damage compensation in notary activities This is the theoretical and cognitive basis for the thesis author to select and implement in his jurisprudence doctoral thesis with the

topic “Liability to compensate for damage in notarization activities

according to Vietnamese law”

2 Research objectives and tasks

2.1 Research purposes

The author determines that the research purposes of the thesis are

to describe, define and explain the concept of notarization activities, the concept of liability for damage compensation in notarization activities Clearly define the theoretical issues about the liability to compensate for damage in notarization activities, based on that reasoning to determine the current status of legal regulations and the actual implementation of the issue

of compensation for damage in notary activities Determining the causes, inadequacies and shortcomings in the performance of liability for damage compensation in notary activities From there, the author gives orientations and solutions with theoretical, practical and feasible basis to perfect the law

on liability for damage compensation in notary activities in Vietnam today

2.2 Research tasks

Research tasks are specific objectives that the topic has to accomplish To achieve the above research purposes, the thesis sets out the following specific research objectives:

- Clearly identify the urgency of the research topic on the liability

to compensate for damage in notarization activities according to the law of Vietnam

- Assessing the overview of the research of domestic and foreign works on the issue of liability for damage compensation in notary activities according to groups of issues; briefly assess the scope and research level of these works, identify the unresolved contents, inherited knowledge and thereby pose issues that need further clarification in the thesis

- Researching and clarifying specific, central, and key theoretical issues directly related to liability for damage compensation in notary activities

- The objective is to clarify the current state of legal regulations

on subjects responsible for compensation and funding sources for damage compensation in notarization activities; The objective is to clarify the grounds for arising liability for damage compensation in notarization activities, how the current state of the law regulates; The objective is to clarify the mechanism of compensation for damage in notary activities, especially how the law regulates professional liability insurance in notary activities; The objective is to clarify the reality of how to perform the liability to compensate for damage in notarization activities through the trial work of the Court From there, the author can see the advantages and limitations, inadequacies that need to be overcome of the specific goals mentioned above

- The final objective of the thesis is that the author gives specific orientations and solutions to contribute to the improvement of the law and the implementation of the law on liability for damage compensation in notary activities in Vietnam Our country is better in the current period and integrates with the notary system of developed countries in the world

3 Subject and scope of research

3.1 Research subject

The object of research of the thesis is the nature of the problem of liability to compensate for damage in notary activities that needs to be considered and clarified in the research task The object of the study is the legal system governing the liability for damages in general such as the Civil Code, Commercial Law, Law on Public Employees, Law on Compensation Liability of the State And the provisions of the law governing the issue of compensation for damage in notarization activities such as the Law on Notary Public, the Law on Insurance Business

3.2 Scope of research

- Content scope: The thesis studies some main contents of the law

on liability to compensate for damage in general and liability to compensate for damage in notary activities in particular, such as: Subject, grounds for arising liability for damage, compensation level, scope of compensation, financial source for compensation; reimbursement liability, notary

professional liability insurance; the subject has the obligation to compensate and the subject is compensated for damage in notarization activities

- Spatial scope: The thesis studies the theoretical issues and legal status of liability for damage compensation in notarization activities in Vietnam from the time before the Law on Notary 2006 took effect (July 1, 2007) until to have a basis to solve the problems raised from the current legal situation and law enforcement practice on liability for damage

compensation in notary activities in Vietnam

4 Research methods

4.1 Methodological approach

To fulfill the research tasks and purposes, the author of the thesis has based on the methodology of Marxism - Leninism (dialectical materialism and historical materialism), Ho Chi Minh's thought, the views

of our Party and State on law, judicial reform, market economy institutions, international integration

4.2 Research methods

During the research process, the author of the thesis used the following research methods:

- Analytical methods to analyze the basic content of documents

- Systematic method is used to systematize documents, works, articles on liability for damage in notary activities

- Synthetic and statistical methods are harmoniously combined with the aim of synthesizing results collected from practice through data and articles on court judgments when resolving liability for damages in notarization activities This method is mainly used in Chapter 3

- The historical method is used to learn the history of formation and development of legal provisions on liability for damage compensation

in notary activities

In addition, the thesis also uses other methods such as comparison, induction, deduction, prediction, etc to clarify research issues

5 New contributions of the thesis

The thesis is a comprehensive and in-depth research on the issue of liability for damages in notary activities The thesis has the following new scientific contributions:

- Firstly, a scientific approach to the theoretical issues of liability

for damage compensation in general and liability for compensation for

damage in notary activities in Vietnam in particular and reference to experience in some countries in the world With a new perspective, the thesis will contribute to perfecting the theory of compensation for damage

in notarization activities according to Vietnamese law The theoretical issues that the thesis has clarified are: The concept of notarization activities and the responsibility to compensate for damage in notary activities; The specific characteristics of the liability to compensate for damage in notarization activities stem from the professional responsibility of the subject performing notarization activities

- Secondly, comprehensively evaluate and analyze the provisions of

the law related to the content of liability for damage compensation in notary activities as mentioned above; practice implementation of these provisions and develop scientific arguments for solutions to improve the law on liability for damage compensation in notary activities

- Thirdly, the thesis proposes solutions to implement the law on

liability for damage compensation in notary activities

6 Theoretical and practical significance of the thesis

The thesis has clarified the nature of the problem of compensation for damage in notary activities; content of liability to compensate for damage in notarization activities The thesis has enriched the number of theoretical and practical researches on liability for damage compensation in notary activities; contribute my own theoretical views on liability for damages in notary activities; provide international and foreign perspectives and theories on liability for damage in notary activities In particular, the thesis has proposed theoretical and practical bases for the improvement of the current law on liability for damage compensation in notary activities in

a manner consistent with the guidelines of the Party and State on the socialization of notary activities in the context of building a socialist rule of law state in Vietnam

The thesis is a relatively comprehensive research work on liability for damages in notary activities The research results can be used for damage settlement agencies (Courts, notary practice organizations, insurance agencies ) to refer to and apply to settlement of damages in notarization activities On the other hand, the thesis can be the basis for state management agencies on notarization activities (Department of Judicial Support, Division of Judicial Support .), Vietnam Association of

Notaries, Notary Associations of provinces and centrally run cities consult, propose amendments and supplements to the Law on Notary to meet the requirements and vision of notarization management in the current and future period in Vietnam

The thesis is a monograph, useful for the research and teaching of the profession of notary at the Judicial Academy and legal training institutions in Vietnam

7 Structure of the thesis

In addition to the introduction, conclusion, list of references, the thesis content is structured into 04 chapters with specific sections and subsections as follows:

Chapter 1: Overview of research related to liability for damage in notary activities

Chapter 2: Theoretical issues of responsibility for damage in notary activities

Chapter 3: Current legal status and implementation of the law on liability for damage compensation in notarization activities

Chapter 4: Orientations and solutions for law improvement, enhanced efficiency of implementation of law on liability for damage compensation for notarization activities

Chapter 1 OVERVIEW OF RESEARCH SITUATION RELATED TO

LIABILITY FOR DAMAGES IN NOTARY ACTIVITIES

1.1 Theoretical research on liability for damage compensation in notary activities

Theoretical researches on liability for damages in notarization activities have received the attention of many domestic and foreign scholars The research works directly related to the thesis topic, which are useful references for the thesis's author when studying foreign legal experience on this issue, include:

- Presentation “Civil Liability of Notary Public in France and Guarantees for damaged persons” of Notary Public Thierry Vachon at the

Vietnam France Law House during a conference organized by the Notary Council of Paris on October 24, 2011

- Author Truong Phong, took office at She Kou Notary Office in

Shanghai with the article "Short discussion on liability for damages in notary"

Article on Legislative Research Journal "Compensation for damage caused by Notary Public" (2011) by Do Van Dai

The book "Completing regulations on civil liability in notarization activities" by Tuan Dao Thanh in 2013

Master's thesis in jurisprudence "Responsibility for compensation caused by notaries in notarization activities under Vietnamese law" (2014)

by author Hoang Van Huu

The book "Law on compensation for non-contractual damages in Vietnam, judgment and thesis commentary" (Volume 2; 2016) by Do Van Dai

Seminar: "Forged documents, responsibilities of notaries" on

November 8, 2019 organized by Ho Chi Minh City Legal Newspaper with the participation of Director of Ho Chi Minh City Department of Justice, representatives of notarial practice organizations, experts in the field of criminal and civil proceedings

1.2 Research on current situation and solutions on liability for damage compensation in notarization activities

The article "Commenting on mistakes in notarized compensation liability and considering the scope of compensation" by author Khuong

Hieu Phung (Jiang XiaoFeng) published in Long Nguyen magazine, period

19, 2014

Article by the author of the thesis of the 2012 course, Cao Quang The

(Gao GuangShi) Law Faculty of Qingdao University "negotiation on compensation liability in notary"

The “handbook of notaries” published by Alex Padilla in 2016

Article: "Discussing the settlement of the liability of compensation for damage of notarial practice organizations in the case related to the declaration of notarized documents as invalid" by Judge Phan Dinh Hai -

People's Court of Buon Ma Thuot City

Seminar "Responsibility for compensation and reimbursement in notary activities" organized by Judicial Academy 2 in Ho Chi Minh City on

September 25, 2020

1.3 Overall assessment of the research situation

1.3.1 The advantages and research results that the thesis will inherit and continue to develop

Although, the above-mentioned research works do not overlap with the thesis topic, but at different levels, some theoretical issues related to the thesis topic have been studied and are important references for the inheritance and development thesis The number of research works on the topic of compensation liability is relatively large, rich and diverse, approached from many directions with different levels of relevance However, the number of research works on

the topic of Liability to compensate for damage in notarization activities, especially in Vietnam, is still small, incomplete, and not systematic This is

also a big challenge for the thesis research implementation Through the study of research works related to the thesis topic, the author has some evaluation of research results as follows:

- Research works have studied, mentioned the concept, purpose and meaning of compensation for damage caused by notary public in notary activities

- A number of research works have mentioned the subject responsible for compensation for damage in notary activities, the responsibility for compensation

- A number of studies have determined the damage to be compensated for in notarization activities, the fault factor as a basis for determining whether compensation is required or not, and the applicable law to compensate for damage in notarization activities

- Professional liability insurance in notary activities has also been mentioned by a number of studies, but there are huge differences between countries in the world and Vietnam

- A number of studies have mentioned how to determine the compensation level, the scope of compensation, the legal status and the actual situation of compensation settlement through a number of specific cases in Vietnam and some countries in the world have quite clear differences between notarization systems in the world

- Some works have compared and cited a number of legal provisions of some countries in the world on settlement of liability for damage compensation, measures to ensure compensation for damage in notarization activities

1.3.2 Issues that have not been thoroughly resolved need further research

- The concept and characteristics of liability to compensate for damage in notarization activities have not been studied and defined properly with the nature of notarization activities

- Who is the subject of the obligation to compensate for damage in notary activities? Where does the funding for damage compensation come from, especially in the case that the party causing the damage is an officer or employee working at the Notary Office while the notary office fee is paid to State budget Who has the right to claim damages in notary activities?

- What is the basis for the arising of liability to compensate for damage in notary activities?

- What is the level of compensation for damage, the scope of compensation, and the responsibility for reimbursement in notarization activities?

- How is professional liability insurance in notarization activities regulated? Are there any shortcomings that need to be amended or supplemented?

- The applicable law deals with the issue of compensation for damage in notarization activities among different types of notarial practice organizations (Notary Chambers and Notary Offices)

- What are the shortcomings of the legal status and the reality of law enforcement on liability for damage compensation in notarization activities?

- How is the orientations and solutions to perfect the law and improve the efficiency of the implementation of the law on liability for damage compensation in notarization activities in Vietnam in the current period?

1.4 Some research questions, hypotheses and research theories

1.4.1 Research question, research hypothesis

Questions 1: What is the liability to compensate for damage in notarization activities? Is it different from liability for damage in civil and economic fields?

Hypothesis: The liability to compensate for damage in notarization activities is the joint responsibility of the notarial practice organization and the subjects perform notarization activities

Question 2: What are the bases for the arising of liability to compensate for damage in notarization activities? Who is the subject of the

obligation to compensate for damage in notarization activities? Where does compensation money come from?

Research hypothesis: Compensation for damage in notarization activities

needs to have all the following elements: There is damage occurring; at fault of the person causing the damage; there is a causal relationship between the fault and the damage occurred (the damage occurred must have a causal relationship with the fault of the person causing the damage)

Question 3: What is the level of compensation for damage, the scope

of compensation, and liability for reimbursement in notarization activities?

Research hypothesis: The level of compensation for damage is

determined according to the actual damage that occurs and must be quantified

in money

Question 4: What is the current state of law and enforcement of liability for damage compensation in notary activities in Vietnam today?

Research hypothesis: The current status of the provisions of

Vietnamese law on liability to compensate for damage in notarization activities before the 2006 Law on Notarization, which took effect earlier, is different from the present

Question 5: How is orientation and solutions to perfect the law and improve the efficiency of law enforcement on liability for damage compensation in notary activities?

Research hypothesis: Orientations and solutions to improve the law

to overcome inadequacies in the provisions of the current legal situation on compensation for damage in notary

1.4.2 Research theory

The research theory for the above research questions is the theory

of damages in general That theory is compared, the study is based on the classical theory of non-contractual liability, the view of objective liability theory (risk theory)

Conclusion of Chapter 1

1 Liability for damages in general and liability for damage in notary activities in particular have been studied by domestic and foreign researchers

2 To a certain extent, research works have mentioned the theoretical issue of compensation for damage in notary activities Because of many different reasons, the views and content presented on these issues in the

research works have not been presented in a comprehensive and unified manner

3 A number of domestic studies have provided analysis and evaluation of the legal provisions on liability for damage in notary activities such as grounds for arising, notarization professional liability insurance, apply law to settle compensation in notarization activities

4 The thesis's author's research topic is inherited, so the basic problem that needs to be continued to be solved in the thesis is not only theoretical issues about liability for damage compensation in notary activities, but also includes current legal issues and recommendations to improve the law on liability for damage compensation in notary activities

Chapter 2 THEORETICAL ISSUES OF RESPONSIBILITY FOR DAMAGE IN

NOTARY ACTIVITIES 2.1 Concept and characteristics of liability for damage in notary activities

2.2.1 The concept of notarization activities and the responsibility to compensate for damage in notarization activities

We can introduce the concept of liability for damages in notary

activities as follows: Liability to compensate for damage in notarization activities is the joint responsibility of the subjects performing notarization activities (notary practice organizations, notary, employees, interpreters of notarial practice organizations) must compensate for damage caused by their own fault if causing damage to notarization requesters and/or to third parties (organizations and individuals suffering damage caused by notarization activities)

2.2.2 Features of liability for damage compensation in notary activities

– Features of the basis for arising liability for damage compensation in notarization activities:

– Features of the law applicable to compensation for damage in notary activities:

– Liability to compensate for damage in notarization activities is the responsibility to compensate for damage outside the contract:

– Liability for damages in notary activities is secured by various financial resources: