How to make good use of Japanese notaries

1.       Features of Japan's notary system

    1.1    What does a notary do?
    A notary attached to the Legal Affairs Bureau or a District Legal Affairs Bureau, is a type of public official appointed by the Minister of Justice, who undertakes notarisation duties.
    The duties of a notary include creation of notarial deeds, authentication of private documents and articles of incorporation, and the attachment of officially-attested dates.

    1.2    Who can become a notary?
    Currently, any person who fulfils the following criteria is eligible for appointment by the Minister of Justice:
(1)    any person qualified as a judge, public prosecutor or attorney;
(2)    any person selected by the Notary Selection Committee, who possesses academic and practical skills similar to those professionals listed under(1) above, and who has been engaged in legal affairs for many years.

    1.3    How did Japan's notary system develop?
    Japan's notary system was established with the promulgation of the Notary Rule in 1886. While this Notary Rule was modelled on the French notary system, apparently it was also influenced by the laws of the Netherlands. Under this Rule the notary's authority was limited to the creation of notarial deeds.
The current Notary Law, influenced by Germany (then Prussia), was passed later in 1909 and the Notary Rule was abolished. This law cites the authentication of private documents, along with the creation of notarial deeds, as part of the notary's work authority.
    The Notary Law has since been revised several times to achieve its current form. In 1938, the authentication of articles of incorporation when a company is established was added to the notary's role. In 1996, a system of sworn statements (affidavits) for the attestation of private documents was established. Then, in 2000, additional authority was given for electronic notarisation including assignment of an electronic officially-attested date and electronic authentication of private documents. In 2002 this was extended to the electronic authentication of articles of incorporation.

2.       Types of notarial deeds

    2.1    What is a notarial deed?
    A notarial deed is an official document prepared by a legal specialist called a notary in accordance with the law. As these are official documents, in addition to a high level of evidential power, if an obligor (debtor) defaults on a debt, it is possible for compulsory seizure to be executed immediately against the debtor's real estate, personal assets and claimable assets in Japan without any court judgement being rendered.

    2.2    What types of notarial deeds are there?
    Notarial deeds include, without limitation:
      -    notarised wills/will deeds;
      -    notarial deeds for contracts pertaining to monetary loans;
      -    notarial deeds related to payment of damages for mental anguish or payment of child support, in connection with divorce; and
      -    notarial deeds relating to the leasing of land or buildings.

    2.3    Can I have a notarised will made even if I am a foreign national?
    If a foreign national resident in Japan has a will prepared at a notary office in accordance with Japanese law, the form of that will is valid in Japan. However, unless the laws of the person's nationality allow to apply the laws of Japan to the formation and validity of the will, or rules pertaining to inheritance, then they will be subject to the laws of the person's nationality. This in turn requires a thorough knowledge of that country's laws.

3.       Authenticating private documents

    3.1    What is an authenticated private document?
    A notary, as a public organization, certifies that the creation or description of general private documents was made through a just procedure. Specifically, a person takes a private document to a notary office and either signs it in the presence of the notary, or in cases such as where the individual acknowledges that the signature on the private document is their own in the presence of the notary, the notary adds a note to that effect on the private document whereby by virtue of its evidential power the genuineness of the execution of that document is certified.
    As the notarising authority of a notary is limited to private documents, official documents will never be the subject of authentication.
    The content of documents to be authenticated must be lawful. Any documents containing matter that contravenes public policy or content that is illegal or invalid, or documents that might possibly be used in a crime cannot be authenticated.
    Depending on the circumstances, any document to be authenticated that has had text inserted, deleted or altered may be ineligible for authentication, or the notary may record those circumstances on the authenticated document.

    3.2    When is private document authentication required?
    Even when a private document is received with the signature or name-seal of the writer, it is not known whether the person who prepared it actually signed or affixed their name-seal on it. Authentication by a notary is a system certifying that the person did prepare the document.
    In particular, documents used overseas often require authentication by a notary.

    3.3    What documents are required for authentication of private documents to be presented in a foreign country?
    Below is the procedure followed when the signatory of a private document comes to a notary office seeking authentication. In addition to the document to be authenticated, please bring any one of the following four types of document.
(1)    Passport
(2)    Driver's Licence
(3)    Basic Resident Register Card (to be attached with a full-frontal face photograph)
(4)    Certificate of seal impression and the registered seal
(If an impression of your seal has been registered with the city hall or ward office, this is the document that certifies this fact. The 'registered seal' refers to the seal of which the seal impression was registered with the city hall or ward office.)

    3.4    How do I obtain authentication of private documents, such as certificates issued by private universities or banks, for which it is difficult in practice to obtain power of attorney from the issuer for the purpose of authentication?

    Leaving aside the issue of evidential power in a foreign country, if the person writes out the content of the bank or other certificate as a declaration, it is possible to authenticate that declaration.

    3.5    What are the fees for private document authentication?
    The fee for authentication of private documents written in a foreign language is normally 11,500 yen per document. However, powers of attorney written in a foreign language are 9,500 yen per document.

    3.6    Affidavits
(1)    What is an affidavit or sworn statement?
    This involves swearing in front of a notary that the content of the private document is true. Sanctions will be applied in case of perjury. In some instances a public office in a foreign country requires submission of private documents sworn by the party concerned as to the truthfulness of its contents and notarisation by a notary to that effect. In these cases, please use an affidavit.

(2)    What are the fees for notarisation of affidavit?
    The fee for notarisation of an affidavit written in a foreign language is 17,000 yen per document.

    3.7    What should I do after I obtain authentication from a notary?
(1)    When a private document is to be presented in a foreign country, sole authentication by a notary is insufficient.
    In general, once authentication from a notary has been received, further authentication must be obtained from a Director of the Legal Affairs Bureau (District Legal Affairs Bureau) to which that notary is attached, that the authentication attached to the private document was made by that notary. The Ministry of Foreign Affairs then attests that the official seal of the Director of the Legal Affairs Bureau is true and finally the consulate of the country in Japan to which the documents will be presented makes its certification (called "consular authentication").
    In instances where the overseas recipient of the private document is an organisation such as a private company, and where there is no objection by the other party such as when there is no requirement for submission to an official body in the recipient country, then sole authentication by a notary is sometimes acceptable.

(2)    Formalities for obtaining "consular authentication" are complicated and the smooth passage of private documents can be obstructed. Japan is a member country of the Hague Convention under which authentication by a consular official is unnecessary. Therefore, if used among member countries of the convention, as long as the apostille of the Ministry of Foreign Affairs is obtained in the form prescribed by the convention, "consular authentication" is not required and the private document may be sent immediately to the overseas party.

(3)    If the recipient is located in a foreign country which is a member country of the Hague Convention, the notary offices in Tokyo and Kanagawa Prefecture will produce authenticated documents with an apostille affixed so that once a notary authentication is obtained the document can be immediately submitted to the overseas party. Even if the document is sent to a foreign country which is not a member country of the Hague Convention, the above notary offices will prepare authentication documents attested by the Director of the Legal Affairs Bureau and the Ministry of Foreign Affairs, which means there is no need to go to either of these offices again, and after receipt of notary authentication, all that remains is "consular authentication" from a local embassy or consulate.
    The notary offices in Toyo and Kanagawa Prefecture have simplified the procedure even more. For details please enquire at your nearest notary office.

(4)    Please refer to the Ministry of Foreign Affairs Home Page for a list of member countries of the Hague Convention.

(5)    Even if a country is not a member country of the Hague Convention, there are several countries that allow special simplified treatment. Please ask at your nearest notary office.

4.       Authentication of articles of incorporation

    4.1    What are articles of incorporation?
    Articles of incorporation are essentially the constitution of a corporation and are rules relating to its purpose, internal organisation and activities. This term can also be used to refer to written documents that record these or to an electronic record of the same.
    When certain companies like a stock corporation (kabushiki kaisha) are set up, the validity of its articles of incorporation will not be recognised unless they are notarised by a notary. The work associated with this authentication shall be handled by a notary attached to the Legal Affairs Bureau or the District Legal Affairs Bureau that has territorial jurisdiction over the district in which the company's head office is located.
    Articles of incorporation changed after the company is set up need not be notarised by a notary.

    4.2    What are the fees for notarising articles of incorporation?
    The fee for notarising articles of incorporation is 50,000 yen excluding the cost of a certified copy. Stamp duty incurs an additional cost of 40,000 yen.

5.       Officially-attesting dates

    5.1    What is the legal effect of an officially-attested date?
    An officially-attested date is the certification of a date. Some legal acts include the first in time principle that rights belong to the person who concluded a contract first. Examples include the assignment of a claim or a pledge of rights. In the assignment of a claim, in order to have priority over a third party, the date of a contract must be clearly certified using an officially-attested date. An officially-attested date is utilised in such instances. However, an officially-attested date is only the confirmation of a date and it does not certify matters such as the genuineness of the creation of the document.

    5.2    How do I obtain an officially-attested date?
    As an officially-attested date is simply the certification of a date, the person who created the document does not need to appear before the notary. Neither a power of attorney nor a certificate of seal impression is required.
    The document which is the subject of the attachment of an officially-attested date, however, must be a private document duly prepared. In other words, it must contain the signature or the name-seal of the person who prepared it.

    5.3    What are the fees for attesting official dates?
    The fee for attaching an officially-attested date is 700 yen per document.