"If the power of attorney is made at the Court, but the power of attorney has not been consularly legalized or notarized or authenticated, the Court shall request the party to redo it in accordance with the law. Only when the party has performed the authorization in accordance with the law will the Court resolve the case ." If the power of attorney is made at the Court, although not notarized or authenticated, but witnessed by a Judge or a Court officer assigned by the Chief Justice, it is still accepted, according to the guidance in Resolution 05/2006/NQ-HDTP.
The two main forms of authorization documents in civil proceedings are power of attorney and authorization contract. The legality of a power of attorney is the signature and seal of the authorizer, notarized or certified. In case of certification, the People's Committee only certifies the signature of the authorizer, not the content of the power of attorney. The characteristics of a power of attorney are its proactiveness, flexible content, arbitrary layout, and only requires the signature and seal of the authorizer. In most cases, authorization in the form of a power of attorney does not state the amount of remuneration, the validity of the power of attorney only arises when the authorized party accepts the content and only performs the obligations within the scope of authorization, outside of that scope they are not responsible. The disadvantage of this form of authorization is that it expresses a unilateral will, and it is difficult to describe all the work that must be done in the authorization letter, leading to cases where some steps have been performed but they continue to not perform them for some reason, causing delays and damage to the parties and to the agency conducting the proceedings. In addition, the refusal to accept the authorization of the authorized representative or the renunciation of the authorization of the authorized party in this case is very easy, the parties do not need to go to the Notary Office or the People's Committee to complete the termination procedure, but only need to have a document expressing the refusal/renunciation of the authorized representation; another major disadvantage of the form of authorization by power of attorney is that there is no specific compensation mechanism in case of disputes.
Compared with the form of power of attorney, representation by authorization in civil proceedings in the form of an authorization contract is more rigorous. The outstanding advantage of this form is a solid legal basis, with specific terms and sanctions, the rights and obligations of the parties are clearly stated in the authorization contract. Article 581 of the 2005 Civil Code stipulates: " An authorization contract is an agreement between the parties, according to which the authorized party is obliged to perform work on behalf of the authorizing party, with remuneration, if agreed or prescribed by law ". Also according to the provisions of the 2005 Civil Code, the authorizing party can unilaterally terminate the performance of the authorization contract, if there is a legitimate reason (except for notarized authorization contracts) and only pay remuneration corresponding to the work performed, plus any damages that must be compensated, if any. For authorization contracts without remuneration, only a suitable notice is required.
In practice, when resolving civil cases where the parties are agencies or organizations, there are cases where the head of that agency or organization does not make a power of attorney or authorization contract but instead uses a letter of introduction with the content of authorizing officers and employees of his agency or organization to participate in the proceedings as authorized representatives of the agency or organization. So should this be considered a document of authorization to participate in the proceedings? There is a view that this is not acceptable as a document of authorization to participate in the proceedings, because the content on the letter of introduction does not show the content of authorization, the scope of authorization of the legal representative of the agency or organization, it only has the meaning of identifying the introduced person as a person of the agency or organization. On the other hand, there is no basis to determine that the signature in the letter of introduction is the signature of the legal representative of the agency or organization [4, p.37].
2.4. Provisions on authorization procedures in civil proceedings
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The conditions of a power of attorney transaction are generally: Content and purpose
The purpose must not violate the law or be contrary to social ethics; the subject of the authorization transaction must be real, or more specifically, to notarize an authorization contract, the following two basic factors must be proven:
- Identity of the authorizer and authorized person;
- Subject of authorization: If it is work to be performed, it must be described; if it is exercising rights and obligations, the authorizer must prove that he has those rights and obligations, and the authorized person must prove that he is capable of performing the subject of authorization.
When participating in litigation, litigants have the rights and obligations of civil litigation as prescribed in Articles 58, 59, 60, 61 of the Civil Procedure Code, amended and supplemented in 2011. Litigants may authorize others to exercise part or all of these civil procedural rights and obligations in their name and for their benefit according to the authorization document. The question is: When can litigants make a document authorizing others to exercise those rights on their behalf? Can representation by authorization in civil litigation be performed before an individual, agency, or organization is recognized as a litigant, or in other words, can representation by authorization in civil litigation be performed before the Court accepts the case? Current law does not specifically stipulate when litigants can make a document authorizing others to participate in litigation, and in practice, each place does it differently. Notary offices require the presentation of documents proving that the authorized person is a party in the case (summons, notices from the Court regarding the acceptance of the case, etc.) to notarize the authorization document; at the People's Committees of communes and wards, it is simpler. In some cases, the parties only need to present their household registration book and ID card to have the authorization notarized, because the notarizer claims that they only authenticate the signature, not the content of the authorization.
According to the provisions of Article 48 of Decree 75/2000/ND-CP dated December 8, 2000 on notarization and authentication (the provisions on authentication of copies and signatures in Decree 75/2000/ND-CP are replaced by Decree 79/2007/ND-CP dated May 18, 2007 on issuing copies from originals, authentication of copies from originals, and authentication of signatures), the procedures for notarization and authentication of authorization documents can be summarized as follows:
The person requesting notarization or certification fills out a Notarization or Certification Request Form according to the prescribed form, presents identification papers and necessary papers to perform the notarization or certification . The competent notarization or certification authority shall receive and check the papers presented by the requester. If it is found to be valid and complete, it shall accept and record it in the book. In case the notarization or certification request cannot be performed on the same day, it shall issue an appointment slip for the requester. The person performing the notarization or certification shall determine the civil act capacity of the requester. If it is found that the content of the pre-drafted authorization document is not contrary to the law or social ethics, it shall perform the notarization or certification. In case the content of the authorization document is contrary to the law or social ethics or is drafted unsatisfactorily, it must be amended or supplemented; if the person requesting notarization or certification does not agree with such amendment or supplement, it shall not be notarized or certified. In case of accepting the amendment or supplement, before signing, the person requesting the notarization or certification must re-read the authorization document or the person performing the notarization or certification must read it to them. If they agree with all the contents of the authorization document, they must initial each page of the document, except for the last page, which must be fully signed; then the person performing the notarization or certification must initial each page of the document, except for the last page, which must be fully signed and stamped.
The person requesting notarization or certification can request the person performing it.
Notarization, authentication drafting of authorization documents to participate in civil proceedings. The person requesting notarization or authentication declares the content of the authorization before the person performing the notarization or authentication. The person performing the notarization or authentication must fully record the content that the person requesting notarization or authentication has declared; if the content of the declaration is not contrary to the law or social ethics, then the document will be drafted.
In case the authorizing party and the authorized representative cannot go to the same notarization or certification authority, the authorizing party shall request the notarization or certification authority at their permanent or temporary residence to notarize or certify the authorization contract; the authorized party shall request the notarization or certification authority at their permanent or temporary residence to notarize or certify the original authorization contract, completing the notarization and certification procedures for the authorization contract. Authorizations that do not fall under this provision do not need to be made into an authorization contract but can be made into a power of attorney and only require the authorizing person to sign the power of attorney.
Thus, the signing of the authorization document is different between the authorization contract and the authorization letter: For the authorization contract, the signature of the authorizer and the authorized person is required, while for the authorization letter, only one authorized party needs to sign. In practice, taking advantage of this provision, the parties often only make an authorization document to participate in civil proceedings in the form of an authorization letter, while the remuneration and other rights and obligations of the authorizer and the authorized party are hidden in another document in the form of a contract or a service agreement between the parties.
Also according to the provisions of Decree 75/2000/ND-CP on notarization and authentication and Decree 79/2007/ND-CP on issuing copies from originals, certifying copies from originals, and certifying signatures, the types of documents required when carrying out authorization procedures include:
+ Identity card, passport, household registration book or other legal documents on the identity and residence of the authorizing party and the authorized party (original and copy); in case the authorizing party and the spouse do not have the same household registration, the household registration book of the wife and the household registration book of the husband and the marriage certificate must be provided;
+ If it is a legal entity, the following documents must be provided: Decision on establishment or recognition of the legal entity by a competent authority or other legal documents (original and copy); Decision on appointment or recognition of the head of the legal entity (legal representative of the legal entity) or power of attorney of the legal entity if authorized (original and copy); Identity card, Passport or valid documents of the legal entity representative (original and copy);
+ If it is a re-authorization, it is necessary to provide a previous authorization document showing the permission for re-authorization. Article 583 of the 2005 Civil Code stipulates: “The authorized party may only re-authorize to a third party, if agreed by the authorizing party or provided by law. The form of the re-authorization contract must also be consistent with the form of the original authorization contract. The re-authorization must not exceed the scope of the original authorization.”
2.5. Provisions on the term of authorization in civil proceedings
According to the provisions of Article 582 of the 2005 Civil Code, the term of authorization is agreed upon by the parties or prescribed by law; if there is no agreement and no provision of law, the authorization contract is effective for one year from the date of establishment of the authorization. As mentioned, in normal civil proceedings, the parties do not record the specific and detailed content of the work and duration of authorization in the authorization document, but record it in general terms. For example, in the authorization document, in the authorization period section, it is stated: "This authorization is effective from the start date until the authorized work is completed or terminated according to the provisions of Article 589 of the Civil Code" , while in the authorization content section, it is stated: "Authorization
The right to participate in proceedings at the competent Court in the case numbered........ until there is a decision or judgment of the Court of First Instance (or until there is a decision or judgment that takes effect from the Court)".
However, there are still many different opinions on the starting point of the above authorization: Is it the time of notarization, authentication or from the time the authorized representative accepts the content of the authorization and signs the authorization document, or from the time the Court accepts the case because from the time the Court accepts the case, the procedural rights and obligations of the litigant (the authorizing person) begin to arise. On the other hand, although the Civil Procedure Code stipulates that the maximum time limit from the time the Court accepts the case until the opening of the trial is eight months (including the extension period in case the case is complicated), the number of overdue cases is still very large, the litigant still has to wait for the Court to work on time. Therefore, it is difficult to determine the exact specific time limit for authorized representation in civil proceedings.
In reality, there are also cases of authorized representation in litigation according to each stage of litigation or specific work: Authorization to participate in mediation; authorization to participate in court sessions; authorization to provide and collect evidence at competent agencies; authorization to participate in litigation until there is a decision or judgment of the Court of First Instance; authorization to appeal and participate in litigation at the appeal stage, etc.; in land dispute cases, authorization can be given right from the mediation stage at the People's Committee of the commune or ward level if the authorization document is accepted.
2.6. Provisions on termination of authorized representation in civil proceedings
Article 77 of the 2005 Civil Procedure Code stipulates that “The legal representative and the authorized representative in civil proceedings shall terminate their representation in accordance with the provisions of the Civil Code” . Accordingly, the termination of authorized representation in civil proceedings shall be implemented in accordance with the provisions of Article 589 of the 2005 Civil Code, including the following cases:
+ Authorization document expired;
+ Authorized work completed;
+ The authorizing party and the authorized party unilaterally terminate the execution of the authorization document according to the provisions of Article 588 of the 2005 Civil Code;
+ The authorizing party or authorized party dies or ceases to exist, is declared by the Court to have lost civil act capacity, has limited civil act capacity, is missing or dead.
Regarding the termination of authorization at the will of one party (unilateral termination of authorization), the 2005 Civil Code stipulates quite specifically in Article 588, accordingly:
For the authorizing party: In case of remuneration for authorization, the authorizing party has the right to unilaterally terminate the performance of the contract at any time, but must pay remuneration to the authorized party corresponding to the work performed by the authorized party and compensate for damages; If the authorization does not involve remuneration, the authorizing party may terminate the performance of the contract at any time, but must notify the authorized party a reasonable time in advance; The authorizing party must notify the third party in writing of the authorizing party's termination of the contract; if not notified, the contract with the third party remains valid, except in cases where the third party knows or should know that the authorization contract has been terminated.
For the authorized party: In case of authorization without remuneration, the authorized party has the right to unilaterally terminate the performance of the contract at any time, but must notify the authorizing party a reasonable time in advance; If the authorization involves remuneration, the authorized party has the right to unilaterally terminate the performance of the contract at any time and must compensate the authorizing party for damages.
Article 78 of the Civil Procedure Code stipulates that in case of termination of authorized representation, the party or the party's heir shall directly participate in the proceedings or authorize another person to represent and participate in the proceedings according to the procedures prescribed by the Civil Procedure Code.