Scope of Representation in Power of Attorney Between Husband and Wife

In summary, the condition of subject status in authorized representation is one of the conditions determining authorized representation between husband and wife according to the provisions of law.

2.2.1.2. Scope of representation in authorized representation between husband and wife

The scope of representation is the limit of rights and obligations under which the representative, on behalf of the represented person, establishes and performs civil transactions with a third party. According to the provisions of law on the scope of representation: "The scope of representation by authorization is established according to the authorization" [22, Clause 2, Article 144], which means that "the representative may only perform civil transactions within the scope of representation" [22, Clause 3, Article 144]. The authorized representative must also have the obligation to "inform the third party in the civil transaction about the scope of his/her representation" [22, Clause 4, Article 144].

From the above concept of the scope of representation by authorization, we see that there is a difference with legal representation. The legal representative has the right to perform all civil transactions for the benefit of the represented person, except in cases where the law provides otherwise. The authorized representative only has the right to transact within the authorized scope. If this authorization limit is exceeded, the excess does not give rise to the rights and obligations of the represented person, except in cases where the represented person agrees or knows but does not object. In cases where the represented person does not agree, the representative must perform his obligations to the person with whom he transacted regarding the transaction exceeding the scope of representation. Thus, determining the scope of representation is very important, if the representative does not want to be personally responsible for the transaction he has established and performed "on behalf of" the represented person.

Likewise, when a husband and wife represent each other by proxy, the scope of representation will be limited. How is the husband representing his wife and vice versa in civil transactions limited? We see that every day with many transactions

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Civil transactions take place around married life, but not all transactions are subject to the regulation of the representative relationship by authorization between husband and wife. Transactions such as the wife representing the husband to attend the wedding of her husband's friend, the husband going on a business trip far away to authorize his wife to receive a university diploma at the university graduation ceremony... and such forms of authorization between husband and wife are not subject to the regulation of the representative relationship by authorization of the Law on Marriage and Family.

So what kind of transactions are regulated by the Law on Marriage and Family in the authorized representation between husband and wife? These will be transactions that, according to the provisions of the law, must have the consent of both husband and wife. That is, these transactions are transactions related to the common property of great value of the husband and wife (Article 28 of the Law on Marriage and Family) or property owned by the husband and wife but put into common use, and the profits and income are the only source of income for the family (Clause 5, Article 33).

According to the above provisions, we can also understand that when a husband and wife agree to authorize each other to perform transactions related to the property owned by the husband and wife, they will also be performed if there is agreement from both husband and wife. At that time, the transaction performed by one spouse according to the will of the other spouse will give rise to property rights and obligations of the represented person. And if the transaction is performed within the scope of authorization, the represented person will be personally responsible for the consequences of the transaction with his or her own property.

Thus, the husband and wife will represent each other in transactions that, according to the law, require the consent of both husband and wife for the law on representation by authorization between husband and wife to apply.

2.2.1.3. Form of written authorization of representative between husband and wife

Regarding the form of authorization, "The form of authorization is agreed upon by the parties, except in cases where the law stipulates that the authorization must be made in writing" [22, Clause 2, Article 142].

But according to the provisions of Clause 1, Article 24 of the Law on Marriage and Family, the authorization between husband and wife in civil transactions that require the consent of both husband and wife "must be made in writing". The provision has limited the form of representation of husband and wife in civil legal transactions. So how will the written agreement between husband and wife in the representation between husband and wife be determined, because this is the legal basis for determining the scope of authorization, the obligations of the authorized person, and at the same time determining the civil liability of the authorizer or authorized person when participating in civil proceedings?

Regarding the form of written authorization, there are currently two forms: Power of Attorney and Authorization Contract. It can be understood that a Power of Attorney is a form of representation authorized by a subject by unilateral legal act, in which it is recorded that the authorizing person appoints an authorized person to represent him to perform one or more tasks within the scope of the provisions of the Power of Attorney. However, unlike the Power of Attorney Contract which is specifically regulated and clearly defined (Section 12, Chapter XVIII of the 2005 Civil Code), the Power of Attorney has long been only recognized without specific regulations. In terms of form, it is a type of "paper" "document"; in essence, it is a civil transaction. Because according to the regulations, "A civil transaction is a contract or unilateral legal act that creates, changes or terminates civil rights and obligations" [22, Article 121]. The establishment of a Power of Attorney fully demonstrates the characteristics of a civil transaction defined above.

However, a legal problem is that there is currently no specific regulation to determine the competent authority to certify the Power of Attorney. In fact, some people when coming to certify the signature on the Power of Attorney at some People's Committees of communes and wards have been refused, while some other wards and communes still certify the signature on the Power of Attorney. Meanwhile, the Notary Offices always accept notarization of Power of Attorney when requested. According to the provisions of Point b, Clause 2, Article 5, Decree No. 79/2007/ND-CP dated May 18, 2007 of

Regarding the issuance of copies from the original, certification of copies from the original, and certification of signatures, the People's Committees of communes, wards, and towns (Commune-level People's Committees) have the authority and responsibility to certify signatures in documents and papers in Vietnamese. Meanwhile, the Law on Notarization, effective from July 1, 2007, stipulates: " Notarization is the act of a notary certifying the authenticity and legality of a contract or other transaction in writing that must be notarized according to the provisions of law or that individuals or organizations voluntarily request notarization " [24].

Thus, according to the above regulations, it can be understood that the organizations practicing civil servants have the authority to notarize the Power of Attorney because it is a civil transaction. However, in some communes and wards, if the signature in the Power of Attorney is certified as a signature in "documents" and "papers", it is still in accordance with the provisions of Decree 79/2007/ND-CP as cited. Thus, if the same Power of Attorney is notarized (signature), what is the legal value different from that of the Power of Attorney being notarized (certifying the authenticity and legality of the contract and transaction)?

We clearly see that there is a difference in the form of the document of the authorization act. To establish the authorization relationship, in many cases the law requires notarization and certification by an individual or competent organization to have legal value. When a husband and wife authorize each other to perform a certain transaction, what form of document is appropriate and convenient for the exercise of the citizen's power as well as the performance of family functions. But what type of authorization document is appropriate for the representation between husband and wife? Those problems have not been resolved by specific provisions of the law, so in many cases people do not clearly understand that the same act (writing a Power of Attorney), but what is the legal value if it is certified or notarized. However, with the relationship between husband and wife, what will the authorization be like, because this is a special relationship, the marriage relationship itself is a significant guarantee for the subject status of the husband and wife in

civil communication, so which form of authorization is more suitable for the marriage relationship as well as meeting the timeliness of civil communication? A power of attorney is a form of authorization between husband and wife performed by one spouse by designating a representative, his or her spouse, to perform one or several tasks within the scope of authorization.

Thus, the establishment of a power of attorney, a power of attorney contract or another type of document in the act of authorization can be agreed upon by the husband and wife to respond as quickly as possible in communication. However, to ensure legality and avoid future disputes, it is necessary to prescribe a unified form of authorization document as stated by Dr. Nguyen Van Tien, Ho Chi Minh City University of Law: "It is time for the Supreme People's Court to issue a document with full guidance on the form, content and what constitutes a valid power of attorney. Having guidance for uniform application will avoid errors and disputes like the present " [Quoted from: 33].

In addition, the certification at the People's Committees also needs to be strictly inspected and controlled to avoid specific cases of taking advantage of the law to lead to errors in the process of law application as follows:

Mr. Phan Quoc Thang is currently a lecturer at the Military Technical Academy and his wife, Ms. Nguyen Thi Bich Thuy, filed for divorce in early 2006.

During this time, Ms. Thuy forged her husband's signature and, together with competent officials, created fake documents to sell off the 198m2 villa at 5C4, Nam Thang Long urban area (Ciputra), which was the common property during the marriage between Mr. Thang and Ms. Thuy. On July 26, 2007, Ms. Thuy forged a "Commitment" confirming that the villa was her private property, forged Mr. Phan Quoc Thang's signature, and then requested certification of the forged signature at the People's Committee of Trung Tu ward. In fact, Mr. Phan Quoc Thang did not make a document confirming the above property for Ms. Thuy, and on July 26, 2007, Mr.

Thang also did not go to the People's Committee of Trung Tu Ward because he had to carry out the duties of the Military Technical Academy. However, Mr. Nguyen Ngoc Phuong, Vice Chairman of the People's Committee of Trung Tu Ward, confirmed on the forged "Commitment Paper" above: "Certified that Mr. Phan Quoc Thang signed in front of me (Mr. Phuong - PV) at the People's Committee of Trung Tu Ward on July 26, 2007".

After having the above fake "Commitment Paper", Ms. Thuy proceeded to make a "red book" for villa 5C4, Ciputra urban area and was granted a Land Use Rights Certificate by the People's Committee of Tay Ho district on August 9, 2007. After that, Ms. Thuy transferred the above villa for 4.1 billion VND without Mr. Phan Quoc Thang knowing [25].

According to the above example, proving the separate property of a couple according to current legal regulations is still simple and if there is only negligence on the part of the People's Committee officials of the commune or ward, the consequences are unpredictable.

In summary, the above are the grounds for the husband and wife to authorize each other to perform civil transactions. Husband and wife can authorize each other under certain conditions when they cannot directly exercise their civil rights. The authorization must be made in writing to be appropriate and ensure the long-term interests of the family.

2.2.2. Rights and obligations of spouses as authorized representatives

2.2.2.1. Husband and wife represent each other in carrying out transactions related to common assets of great value, assets that are the sole source of livelihood for the family or assets used for business investment.

" The establishment, implementation and termination of civil transactions related to common property of great value or the sole source of livelihood of the family, the use of common property for business investment must be discussed and agreed upon by the husband and wife " [18, Clause 3, Article 28].

These are transactions in the civil and commercial fields regulated by civil and commercial law. When the husband or wife participates in this transaction as an individual, an independent entity without having to care about the subject status of the legal relationship as well as the origin of the assets. For example, the Enterprise Law does not have specific regulations on the origin of capital contributions to the enterprise, or the Civil Law does not have regulations requiring participants in large value transactions to know what assets the transaction is made of? Meanwhile, this has a direct impact on the legal validity of the transaction as well as the rights and interests of the parties involved.

However, due to the special nature of marriage, the Law on Marriage and Family regulates it with another meaning, which is the property relationship between husband and wife in transactions of this type. Therefore, determining the will, purpose and type of property included in the transaction is the basis for determining the property responsibility of the husband and wife when one party participates in the transaction as a representative under the authorization of his or her wife or husband, but "In Vietnamese law, there are no provisions to bridge and provide a legal basis to resolve this issue between branches of law" [13]...

Thus, to determine the concept of "common property of great value" is not an easy problem in the current social conditions. However, the law as well as the guiding regulations do not stipulate what constitutes a property of great value, so the understanding and application of the law will depend on the reality of social life in general as well as the common ground of each locality and of the judge. But we can also understand that property of great value is when transactions related to that property affect the common property of the family. Any transaction related to the common property of a couple of great value must have the agreement of the couple. And then the couple can authorize each other to carry out those transactions and must be expressed in writing.

However, in reality, when a husband and wife represent each other by authorization to carry out a civil or commercial transaction, it is often done orally.

Or if there is no clear will and the value of the transaction is not small, what is the basis for expressing the consent of the spouses in this transaction? For example: A is B's husband. A goes to C's store to buy a car worth 200 million. When he knows that B does not object. Thus, the establishment of this transaction is considered as an implicit authorization of the couple, implicitly acknowledging the legal value of the transaction even though there is no document confirming Ms. B's authorization to Mr. A in establishing the car purchase transaction. However, it will be complicated when Ms. B objects to buying Mr. A's car because she believes that the establishment of the transaction did not have her consent. According to the provisions of the law, in this case, the transaction will be declared invalid. The parties will return to each other what they have received, returning to the original state. However, forcing C to take back the car worth 200 million is almost impossible. Because C actually wants the car and has sold the car, C never wants to receive the car back and pay the money because the sale of the car is also related to the law on Tax and C's business status. Moreover, C does not know and is not required to know whether the use of 200 million to buy the car had the agreement of A and B. If C is forced to return the money and receive the car, it will lead to instability in civil communication. Thus, the representation of spouses occurs every day in social life beyond the control of legal regulations. However, it will be difficult to determine when a dispute occurs and determine whether this representation is legal or not. At this time, which form is best for expressing the unified will of the spouses? Will the request of the husband or wife to cancel the invalid transaction be accepted, and is the damage to the seller being having to receive the car back and return the money accepted? Or is it necessary for buyers of large assets to provide a written statement of the agreement of the spouses when purchasing large assets?

Next, transactions conducted by one spouse related to common assets of great value, such as valuable papers such as stocks, bonds, promissory notes, etc., are also very difficult to determine the agreement of the spouses in the transactions. With these papers, they are not allowed to participate in circulation and transfer on the market, but only transfer ownership with the following conditions:

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