According to the provisions of law, individuals and legal entities may authorize other individuals or legal entities to establish and perform civil transactions, except for cases where it is required by law that they must establish and perform civil transactions by themselves. that transaction. Therefore, when an individual or legal entity requests the Court to settle a civil case, if the individual or legal entity does not participate in the proceedings at the Court by themselves, they may authorize another person to participate in the proceedings on their behalf. proceedings but must be established in writing power of attorney. The power of attorney can be established by a power of attorney or a power of attorney contract. So, is it legally required to notarize or authenticate the power of attorney or authorization contract?

In the recent practice of adjudicating civil cases, there have arisen a number of situations that have caused legal controversy as well as inconsistent interpretations and application among those conducting the proceedings. with each other as well as between procedure-conducting persons and procedure-participating parties on the above issue. In the court industry, there are some courts that require authorization documents to be notarized and authenticated before the Court will accept the authorized person to participate in court proceedings. There are also some courts that only accept power of attorney without notarization or authentication, but the authorizing party must be a legal person and this power of attorney must be signed and closed by the legal representative of that legal entity. seal of the legal person.

The issue of authorization is recognized by law mainly in the Civil Code of 2015, the Civil Code of 2015 and the Law on Notarization 2014, specifically as follows:

Article 562 of the Civil Code 2015 stipulates:  “A authorization contract is an agreement between parties whereby the authorized party is obliged to perform work on behalf of the authorizing party, the authorizing party only has to pay remuneration if there is an agreement. agreed or provided for by law” .

Article 55 of the Law on Notary 2014 also stipulates the following:  “ When notarizing authorization contracts, the notary public is responsible for carefully examining the documents, clearly explaining the rights and obligations of the parties and the consequences. legality of such authorization to the parties” .

At the same time, in Clause 6, Article 272 of the 2015 Civil Code, it is stated:  “The authorization specified in Clauses 3, 4 and 5 of this Article must be made in writing and duly notarized or authenticated, except for cases where such power of attorney shall be made at the court in the presence of the judge or the person assigned by the chief justice of the court. The power of attorney must contain the content that the involved parties authorize their authorized representatives to appeal against the first-instance court’s judgment or decision to suspend or terminate the settlement of the case.

Thus, with the above provisions, there are only provisions for cases where the power of attorney to make an appeal against the first-instance judgment, the decision to suspend or terminate the settlement of the case of the court of competent authority. At first instance, the power of attorney must be notarized and authenticated, while the remaining authorization documents do not have any regulations requiring notarization and authentication of the power of attorney.

However, in practice, there are some cases where the Court does not accept the power of attorney or the authorization contract between the authorizing party and the authorized party, who are both individuals. On the contrary, if the authorizing party is a legal person, the Court will accept it. According to the writer, why does the Court accept the power of attorney of the legal entity and not the authorization of the individual for the following reasons:

Firstly, the reason for the Court’s acceptance of the power of attorney of a legal person is because according to Article 74 of the Civil Code 2015,  “the legal person has an organizational structure and independently participates in legal relations on its behalf. “ . Therefore, in case a legal person authorizes another person to participate in the proceedings by means of a written authorization, the legal representative of such legal entity shall have signed and  stamped such legal entity’s seal on the authorization document. On that basis, the authorized person on behalf of the juridical person decides all issues according to the scope of authorization and all issues have been decided by the authorized representative of that juridical person. responsible for all matters decided by the authorized person.

Secondly, for the power of attorney between individuals, because the Court has no faith and no basis to judge whether the involved parties in the case have signed the power of attorney to authorize. for other individuals to represent them in court proceedings? Such power of attorney shall not be submitted by the involved parties to the Court but by the authorized individual to present to the Court. The case is that if the Court accepts a power of attorney handed over by an authorized individual and that power of attorney contains forged signatures of the involved parties, it will greatly affect the interests of the involved parties as well as the image of the parties. influence the court’s case. Therefore, the Court does not accept authorization documents between individuals that have not been notarized or authenticated.

It can be said that the fact that the Court accepts the power of attorney authorized by a legal entity but the Court does not accept the power of attorney between individuals, invisibly shows that there is inequality in the exercise of rights. and obligations of the litigants because when participating in court proceedings, the involved parties are legal entities or individuals have equal rights and obligations when participating in the proceedings, this fact is also clearly stipulated in Article 2 of this Law. 70 of the Civil Code 2015.

In order to ensure consistency in  practice, in the writer’s opinion, there is a need for consensus in the court industry when considering authorization documents in the following direction:

Firstly , always determine that the rights and obligations of the involved parties in the case are equal, so it is impossible for the Court to accept the power of attorney of the legal entity without accepting the power of attorney between the parties. individuals together. Avoid the case that the litigant thinks that there is an inequality between the litigants being legal entities and the litigants being individuals so that there is a distinction between the power of attorney of the individual and the individual and the power of attorney between the legal entity and the individual. legal entity or between a legal person and an individual.

Secondly , according to the provisions of Clause 6, Article 272 of the Civil Code 2015, the appellant may authorize another person to represent him/her to appeal, the authorization to appeal  must be made in writing, which is notarized and duly authenticated. law, unless such power of attorney is made at a court in the presence of a judge or a person assigned by the chief justice of the court. Thus, the making of a new power of attorney to appeal is made at the Court. Therefore, to ensure the interests of the involved parties as well as reduce administrative procedures, the Court should accept the case where the power of attorney is established at the Court and must be certified by the accepting Judge. that case or the person assigned by the Chief Justice of the Court.

Thirdly , the written authorization to participate in the proceedings of civil cases made outside the court must be notarized or authenticated.

Source of Electronic People’s Court Journal (http://tapchitoaan.vn).