REGULATIONS RELATING TO THE EXECUTION OF AUTHENTICATION BY OVERSEAS CONSULAR OFFICIAL OF ROC
Promulgated jointly by Judicial Yuan and Executive Yuan on April 23, 2001
Entered into force on January 1, 2002
ARTICLE 1
The Regulations is enacted under paragraph 3 of Article 150 of Authentication Law of 1999 (hereinafter referred to as the “Law”).
ARTICLE 2
The overseas consular official (hereinafter as “consular official” ) as described in the Law means the official, who conducts the consular affairs, assigned or authorized by the Ministry of Foreign Affairs, the Republic of China, in the ROC embassies and consulates, representative offices, offices and / or other agencies authorized by the Ministry of Foreign Affairs in foreign countries (hereinafter as “overseas missions” ). Such consular official described above should be entitled to the qualification of diplomatic and consular personnel, except persons authorized by the Ministry of Foreign Affairs of ROC.
ARTICLE 3
In this Law, the expression “Active Duty Area” means the area within consular jurisdiction defined and distributed by the Ministry of Foreign Affairs of the ROC. Consular official is subject to conduct the authentication service within the overseas offices, nevertheless the consular official may conduct the related service at the other appropriate premise.
ARTICLE 4
On the request of the parties concerned and other privy, the consular official may conduct the services and authenticate the documents only for use in Taiwan as follows:
(1) The overseas Chinese apply for the authentication of testament in the terms of paragraph 2 of Article 1191 of Civil Law.
(2) The authentication of official and private documents under Article 2 of the Law.
(3) The documents are authenticated out of the boundary of the Republic of China (hereinafter as “foreign document” ).
If the documents are authenticated as described in (2) and (3) above at the consular jurisdiction of adjoining overseas missions in the same foreign country and without the difficulty of verification, the consular official should accept the application.
If the documents are authenticated as described in (1) above, the parties concerned may request the signatures and official seals of ROC consular officials to be authenticated by MOFA for use in Taiwan.
ARTICLE 5
The overseas missions may employ the assistants, who are obliged to be well acquainted with the language, law and political situation of Active Duty Area, to help the consular officials to conduct the authentication.
ARTICLE 6
The consular officials are obliged to bear his / her official title and the designation of his / her overseas missions while the consular officials sign or seal the documents in the process of authentication. The consular officials may bear other official title or designation authorized by the Executive Yuan or MOFA under peculiar circumstances of Active Duty Area.
ARTICLE 7
The consular officials may refuse the requests for authentication; notwithstanding the consular officials shall require the corroboration of the documents from the applicant in some periods if the documents may be corroborated, as follows:
(1) The requested authentication is out of the consular jurisdiction of Active Duty Area.
(2) The authenticated documents are not to be used within the territory of ROC.
(3) The signatures and seals of documents or related proof submitted are not original ones and without original copy and manuscript accompanied.
(4) The content is against the law of ROC or it is void act-in-law.
(5) The act is against treaty, public international practice.
(6) The purpose of request or the content of documents are clearly illegal, inappropriate, or not in accordance with the national interests of ROC.
(7) In the event of authentication for testaments, the testator fails to express his / her ideas clearly on account of illness, senility or other causes, or the testator’s ideas cannot be decided firmly under the instruction of third party to answer yes or no, or cannot express the ideas only by such body language as nodding, gesture and so on.
(8) The documents submitted thereof are done within the territory of ROC, and are not authenticated through the appropriate process by MOFA.
(9) Applicants or their agents fail to present appropriate identification papers.
(10) Application shall not be submitted by the agency in accordance with the rules.
As described in (8) above, the consular officials shall accept the application of authentication on condition that the consular officials has no difficulty to verify and the applicant agrees to bear the fee of verification.
The consular officials may refuse the request by the verbal or the written notice, and the consular officials shall grant the applicant a written statement on the applicant’s request.
As described in (1) above, the applicant may request the transference of the documents to the overseas mission concerned; the consular official may decide whether the documents shall be transferred or not after consideration; the expenses caused by transference shall be borne by the applicant.
ARTICLE 8
The applicant and the party interested may state the opinion by the written notice, if he / she regards the consular officials’ conduct as illegal or inappropriate act.
The consular officials shall conduct the appropriate disposition, as the opinion is regarded as reasonable, on the contrary, the consular officials shall present the case along with the applicants’ opinion to the head of overseas mission for the verification, and the head of overseas mission shall verify the case of transfer to MOFA in five days, and notify the applicant.
If the applicant’s opinion is regarded as reasonable by the head of overseas mission or MOFA, the consular official shall be ordered to re-conduct the case properly; if applicant’s opinion is not regarded reasonable, the consular officials shall request MOFA to deliver the case accompanied by the applicant’s opinion to district court for ruling.
ARTICLE 9
The authentication service shall be charged in accordance with the fees determined by MOFA.
ARTICLE 10
The overseas missions shall compile the authentication register by the written way or computer, and the register shall be made consecutively according to the receiving date and order of precedence.
ARTICLE 11
All documents and relevant files shall be kept on file at the overseas offices, and not allowed to be moved out of the offices unless MOFA or other authorities concerned borrow the files by the rules; the files have been duplicated, or files must be moved out in the event of emergency.
The keeping of documents and files regarding testament notarization shall be permanent, the keeping of authentication documents regarding acquisition, deprivation and alteration of real right of immovable shall be ten years, the keeping of authentication register shall be thirty years.
The keeping for the authentication files except as described in paragraph 1 above shall be three years; nevertheless the files may be destroyed if it is necessary.
The keeping period as described in paragraph 1, 2 above shall accrue from January 1 next year succeeding the date of last registration.
The rules set forth above shall be applicable to the authentication documents, files and registers which have been finalized, but have not been destroyed.
ARTICLE 12
When applying for testament authentication, testator must present original identification paper, with two witnesses for testament designated by testator; application shall not be filed by the agent unless it is done by testator in person. The testator shall dictate the intention of testament in front of the consular officials and witnesses and to be taken down, read, explained, after it is recognized by testator and enter into the date, month and year, and signed by the consular officials, witnesses and testator. Provided that testator is unable to sign in person, the consular officials shall record the reasons and have the testator’s fingerprints repressed on the testament instead.
If the property with relation to the testament is complex and intricate, the consular officials may record the details of documents concerned provided by the testator.
Persons who are eligible for the qualification as described under Article 1198 of Civil Law and paragraph 1 of Article 97 of the Law are not allowed to be witness as described under paragraph 1 and 2.
ARTICLE 13
While conducting private documents of testament authentication, the consular officials shall formally notify and mail the copy of the related documents to National Federation of Public Notary Association for keeping on file.
Before the establishment of National Federation of Public Notary Association, the above-mentioned documents shall be kept on file at the overseas missions respectively.
ARTICLE 14
The authentication shall be conducted, subject to provisions of treaties, international practice and other rules, in accordance with Article 106 of the Law by the way of straight registration and Article 100 of the Law by the way of authentication conduct.
The rules as described above shall be applicable for the authentication of foreign documents.
ARTICLE 15
When authentication of documents is conducted by the way of straight registration under Article 106 of the Law, the consular officials shall stamp the original, transcript, copy or translation copy of the documents at blank with authentication seal. If there is no blank, or blank space is not sufficient, the seal may be stamped at the reverse side of the documents, or links the documents with another page of paper sealed by edging stamp or other ways to indicate the continuation.
After the authentication with relation to the purchase and sale, alienation of real property has been made, the consular officials shall mail directly the transcript or copy of the authenticated documents accompanied with official notice of overseas missions to the relevant city / county government where the real property belongs to for inspection.
ARTICLE 16
When the translation copy of documents are authenticated, the consular officials shall stamp the seal as are described (This is a liberal translation of the attached documents in ________ ) inside the authentication seal or translation copy, and stamp the edging seal between the original and translation in order to indicate its continuance.
If the above-mentioned documents are made in other language out of the Active Duty Area, or of which language the consular officials are not familiar, the applicants shall enclose both of the Chinese and English translation copy of the documents for perusal, and the consular officials may request the applicants to have the documents and their translation copies authenticated / notarized by the public authentication agency, public notary, or public translator at first, the consular officials shall authenticate the seals of the above-mentioned agency and person, nevertheless not responsible for verifying the translation. The rule thereof above shall be applicable for the authentication of documents of which content concerns the law, rules and professional know-how of Active Duty Area or third country.
The acquaintance degree of the consular officials in the process of authentication of translation copy shall depend on of which language the documents are made, and regarded by the Judicial Yuan to be qualified for the class A in English language efficiency or other languages under Paragraph 3 of Article 5 of the Law.
ARTICLE 17
The consular officials shall verify and collate the signature and seal in the document or in other appropriate way to verify and collate ( hereinafter as verify) under Article 14 of the Law in the process of authentication, after the verification is confirmed, subject to provisions of treaties, international practice and other rules.
The procedure of above-mentioned verification is as follows:
(1) The signature and seal of the documents shall be verified at first by the authorities concerned of the document-made country (hereinafter referred to as “The Country”).
(2) During the process of verification for the signature and seal of the above-mentioned authorities concerned, if the sample for collation is not available, the consular officials shall request the authorities concerned to verify, or request the applicant to have the document verified by higher-ups of document-made unit with the sample of signature and seal or authorities concerned.
(3) If the verification cannot be made in accordance with the paragraph set forth above, the document shall be verified by the Ministry of Foreign Affairs or authorities concerned of the Country, or by the embassy or consulate of the Country stationed in Active Duty Area of ROC overseas office, if the overseas office does not have the sample of signature and seal of member of the Country’s embassy and consulate for collation, the overseas office shall request the embassy and consulate of the Country to verify the signature and seal.
ARTICLE 18
The forms, seals and other notes of authentication under the Regulation shall be enacted by MOFA.
ARTICLE 19
The Regulation entered into force January 1, 2002