Substantive, Non-Substantive, or Procedural – Understanding Categories of Notarization in China

Most countries follow one of two major legal traditions: common law or civil law.¹ Common law countries and civil law countries typically have different notary systems. Chinese legal professionals refer to the notarization system in common law countries as “formality notarization” or “procedural notarization”, while they refer to the notarization system in civil law countries as “substantive notarization”. These terms of categorization are not widely used in the world. Chinese legal professionals use them to distinguish between the different notary systems adopted by civil law and common law countries. Although not internationally used, these terms do make some sense.²

The functions of common law notaries are primarily concerned with the certification of signatures. In the United States, for example, the American Society of Notaries lists the basic duties of a notary public as ACKNOWLEDGMENT (acknowledging signing of documents), OATH OR AFFIRMATION (witnessing sworn signatures), SIGNATURE WITNESSING, and COPY CERTIFICATION.³

By contrast, the functions of notarization in the civil law system are much broader. China’s legal system is based on the civil law system.⁴ The civil law notary system greatly influences the establishment and development of China’s notary system. In China, notary applications are filed with specialized notary institutions staffed with full-time notary publics.⁵ The Notary Law of the People’s Republic of China provides that notary publics can notarize signatures, document copies, as well as many other matters. For example, Chinese notary publics can notarize basic personal records such as birth, death, marriage, educational qualifications, and no criminal records and help applicants write “legal documents related to notarization matters”. More functions are accompanied by more responsibilities. A Chinese notary public is responsible for examining “whether the matter for which notarization is sought is true and lawful”. If a notary public “issues a notarial certificate for a matter that is untrue or unlawful” and the circumstances are serious, he or she “shall be held criminally liable in accordance with the law”.⁶

The comparison between the notary functions in China and the United States is a typical demonstration that common law notarization focuses on signatures while civil law notarization covers both substantive content and signatures. That’s where the distinction of “formality” or “procedural” and “substantive” comes from.

However, in China, notarization is more commonly categorized using another pair of terms – “substantive notarization” and “non-substantive notarization”. Although the definition of “non-substantive notarization” is not seen in official Chinese sources, the term is widely used in Chinese social media, on the Chinese internet, and by notary publics in practice. If you put Chinese substantive and non-substantive notarial certificates next to each other, you will see how closely the so-called “non-substantive notarization” is related to “formality notarization” or “procedural notarization”. Let’s look at a few sets of sample notarial certificates below.

SAMPLE CHINA NOTARIAL CERTIFICATES OF NO CRIMINAL RECORD

This is a sample of the substantive notarial certificate of no criminal record. The notary statement directly certifies the fact that the applicant has no criminal record.

This is a sample of the non-substantive notarial certificate of no criminal record. The most notable difference is that a certificate of no criminal record issued by police is attached to the non-substantive notarial certificate while none appears in the substantive notarial certificate. The notary statement read, “The previous copy is a true copy of the original document, and the original is authentic.” In other words, this notarial certificate can only prove that the police genuinely issued the certificate of no criminal record rather than a false document. It does not certify whether the information stated in the police version of the certificate of no criminal record is true or not. The police department that issued the Certificate of No Criminal Record is the only one who can verify the information.⁷

SAMPLE CHINA NOTARIAL BIRTH CERTIFICATES

This is a sample of the substantive notarial birth certificate. The notary statement directly certifies the basic information about the applicant’s birth.

This is a sample of the non-substantive notarial birth certificate. Similar to the non-substantive notarial certificate of no criminal record, a copy of the birth certificate is attached to the notarial certificate. The notary statement also uses the wording, “The previous copy is a true copy of the original document, and the original is authentic.”

SAMPLE CHINA NOTARIAL MARRIAGE CERTIFICATES

From the above examples of “non-substantive notarization”, it is clear that they are very similar to “formality notarization” and “procedural notarization” in common law countries. Non-substantive notarial certificates invariably have the statement “The previous copy is a true copy of the original document, and the original is authentic.” The first half of this statement certifies that the copy is a true copy of the original, and the second half implies that the signature on the original is authentic and that the document is not forged or altered, which are precisely the functions of notarization in the common-law countries as discussed previously.

When a Chinese notarial certificate is needed for use in other countries outside China, the applicant often has to choose between “substantive notarization” and “non-substantive notarization”. The correct choice varies by the country of destination as well as the matter of notarization. Regarding how to choose between the two, applicants can consult the authorities in the country of destination, notary institutions in China, and specialized agents who are familiar with the rules in the country of destination. Applicants can also check the Collection of Consular Authentication/Apostille Requirements of Foreign Embassies (Representative Offices) in China published on the China Consular Service Website.

Thank you for reading.

1. THE COMMON LAW AND CIVIL LAW TRADITIONS, Berkeley Law, University of California, Berkeley. ↩︎
2. 《公证实质与实质公证》, Nanjing Notary Public Office. ↩︎
3. Basic Notarial Duties, American Society of Notaries. When a notary acknowledges a signature, the notary must confirm that the signer understands the document to be signed. This is not required for regular signature witnessing. ↩︎
4. 《当代中国法律制度的基本特征、结构与未来发展展望》，王江雨。 ↩︎
5. 司法部副部长段正坤就《公证法》有关问题答记者问，中国政府网。 ↩︎
6. 《中华人民共和国公证法》（2017）第十一条、十二条，中国人大网。 ↩︎
7. I have confirmed with several Chinese notary public about this point, but one notary held a different opinion. ↩︎