The Forty Years of Attestation System Will Continue to Strive for Brilliance

The “China-Appointed Attesting Officer” system was created by the Ministry of Justice in 1981, and it is now exactly 40 years old. As the legal systems of the Mainland and Hong Kong are different, there are obvious differences in the nature of the notarization system, and the relevant departments and people in the Mainland are unable to understand the real situation of the concerned parties in Hong Kong. Prior to 1981, Hong Kong residents who returned to the Mainland to handle legal matters could only obtain the relevant documents through some Mainland agencies and some local associations in Hong Kong. With the reform and opening up, the ties between the two places became increasingly close and the demand for related legal services kept rising. Therefore, in 1981, the Ministry of Justice appointed the first batch of eight Hong Kong lawyers to be “China Appointed Attesting Officers” responsible for preparing legal documents for Hong Kong residents to handle legal matters in the Mainland, thus establishing the “China-Appointed Attesting Officer” system. The China-Appointed Attesting Officer system became an innovative system designed to address the issue of using attested documents between different social systems and legal systems within a country.

After 40 years of development, the Ministry of Justice has appointed 12 batches of 533 China Appointed Attesting Officers. At present, there are a total of 445 China-Appointed Attesting Officers in Hong Kong, providing attesting services in more than 280 law firms.

BUSINESS DEVELOPMENT

From the early days of the China-Appointed Attesting Officer system to 2003, the business was mainly concerned with the civil category -- mainly marriages and adoptions, which accounted for half of the total number of attested documents at that time. With the leapfrog development of the Mainland economy, commercial activities between the two places have become increasingly frequent, and the number of attested commercial documents has obviously increased significantly; particularly, in 2003, when the Mainland and Hong Kong signed the Mainland and Hong Kong Closer Economic Partnership Arrangement (hereinafter referred to as CEPA), which incorporated the China-Appointed Attesting Officer system into the CEPA framework. Attested documents sent from Hong Kong to the Mainland have shown a significant growth trend. In 2018, 108,115 attested documents were processed for use in the Mainland, of which 57,932 were commercial-type attestations, accounting for approximately 54.68% of the total number of instruments.

Over the past 40 years, the China-Appointed Attesting Officer system has been playing an active role as a “bridge” to cater to the development needs of the country. For example, the Attesting business grew significantly from 2017 to 2018, with the annual number of attestations exceeding 100,000. This is mainly due to the opening of the Hong Kong-Zhuhai-Macau Bridge which allows eligible Hong Kong natural persons and enterprises to apply for cross-border car driving permits, thus boosting the demand for the relevant attestations. In addition, the Shenzhen education authorities also introduced a new policy in 2017 to allow Hong Kong-born school children (commonly known as “singly non-permanent resident” children and “doubly non-permanent resident” children) with one or both parents who are not Hong Kong residents but having household registration in Shenzhen to enrol in Shenzhen schools or apply for relevant subsidies.

At present, attested documents processed by China-Appointed Attesting Officers cover basically all civil and commercial legal matters, including investment, loans, real estate, mortgages, trade and economy, CEPA, marriage, inheritance, adoption of children, litigation and arbitration, etc. Since 1992, when statistics were available, more than 1.77 million attested documents have been handled by China-Appointed Attesting Officers, with an average of about 75,000 documents handled annually in recent years.

VERIFICATION, AFFIXING SEAL AND THE SUBMISSION SYSTEM

Since the creation of the China-Appointed Attesting Officer system in 1981 until 1992, attested documents were sent directly to the Mainland for use by the China-Appointed Attesting Officer who processed the attestation. However, with the rapid increase in the types and number of attested documents, problems gradually emerged. At that time, there were even unscrupulous people impersonating as China-Appointed Attesting Officers forging attested documents and altering their contents ; there were also some parties who took advantage of the loopholes at that time to repeatedly apply for attested documents for marriage in the Mainland, committing bigamy or other fraudulent activities in the Mainland.

Since 1992, the Ministry of Justice has established a system for the verification and submission of attested documents, authorizing China Legal Service (H.K.) Ltd. to undertake the verification and submission of attested documents issued by China-Appointed Attesting Officers for use in the Mainland, and to liaise and coordinate with the Mainland authorities for the use of attested documents. To address the differences of laws between the two different jurisdictions, it seeks to strike a balance between the law and operation so as to ensure the smooth and effective use of attested documents. Since then, the China-Appointed Attesting Officer system has formed two inseparable links, i.e. the attested documents issued by the China-Appointed Attesting Officers can only become a valid attested document for use in the Mainland after it is verified, registered, affixed with a seal and submitted by China Legal Service (H.K.) Ltd..

In 1996, the Supreme People’s Court and the Ministry of Justice jointly issued the “Notice on the Validity of Attested Documents Relating to Hong Kong”. It is stipulated therein that when handling Hong Kong-related cases, for events and documents of legal significance occurring in Hong Kong, the parties concerned shall submit attested documents issued by China-Appointed Attesting Officers and verified, sealed and submitted by China Legal Service (H.K.) Ltd.. Attested documents that have not been verified, sealed and submitted shall be deemed not to have the attestation effect and enforcement effect of attested documents as provided in the Civil Procedure Law of the People’s Republic of China, nor to have the effect against a third party as provided in Article 43 of the Guarantee Law of the People’s Republic of China, and the acts involved shall not be protected by law.

In order to improve the China-Appointed Attesting Officer system, the Ministry of Justice formulated the “Measures for the Administration of China-Appointed Attesting Officers (Hong Kong)” and the “Rules for China-Appointed Attesting Officers Handle Attested Documents (for Trial Implementation)” in 1995 and 2002 respectively, which set out clear rules on the scope of business of China-Appointed Attesting Officers, conditions and procedures for appointment, conditions and procedures for registration, legal liability, as well as the classification, attestation methods and formats and requirements of attested documents to be handled by China-Appointed Attesting Officers. These rules further regulate the China-Appointed Attesting Officers’ business and improve the quality of attested documents.

FEATURES OF THE SYSTEM

When Hong Kong lawyers are appointed by the Ministry of Justice to become China-Appointed Attesting Officers, the documents issued by them have the legal characteristic of combining Hong Kong’s rules for preparing certification with the requirements of using documents in the Mainland, which not only retains the witnessing of declarations and oaths under the Hong Kong legal system but also adds an obligation on China-Appointed Attesting Officers to verify the authenticity and legality of different kinds of documents. Whether it is to prove objective facts or legal facts, it is necessary to arrange different evidence for different kinds of subjects to be attested and arrange different verification procedures.

Documents issued by China-Appointed Attesting Officers to the Mainland for use must not only satisfy the authenticity and legality requirement but must also be applicable. Since Hong Kong and the Mainland are in different jurisdictions, their civil and commercial law provisions are quite different in many aspects. In the Law on Applicable Law for Foreign-related Civil Relationships, Company Law, Marriage and Inheritance Law of the Chinese law, there are relevant requirements which must be considered in handling attestation matters. For example, in Hong Kong, one can marry at the age of 16 with the consent of both parents, but in the Mainland, the marriage age is 20 for women and 22 for men. Although the attested document attests to the fact that the parties are unmarried according to Hong Kong law, it cannot be used in the Mainland if it does not meet the age requirement for marriage of the Mainland.

The China-Appointed Attesting Officer system is a new attestation system set up with reference to the above-mentioned features. It was created in response to needs and was set up according to certain appointment procedures. Under the legal setting of Hong Kong, it combines the features of attestation in Hong Kong and the Mainland by making use of the verification and evidence collection capabilities of Hong Kong lawyers to produce documents with substantive proof, which are true, legal and applicable, and are increasingly accepted and welcomed by the Mainland organizations that use these documents.

REGULATION OF THE INDUSTRY

In order to further strengthen the self-regulatory mechanism of the China-Appointed Attesting Officer profession, to improve the business guidelines, practice supervision and internal rules and regulations, to enhance the esprit de corps of China-Appointed Attesting Officers as well as promote the exchange and development of the legal profession between the two places, Association of China-Appointed Attesting Officers Limited (hereinafter referred to as “the Association”) was established on September 28, 1988, as a non-profit making professional body registered in Hong Kong under the Companies Ordinance of the Hong Kong Special Administrative Region.

The Council is the pivot of the Association and currently consists of 15 Council Members. The Council exercises all the powers of the Association and executes all the matters of the Association, except for those that must be exercised by the General Meeting. In 1991, the Association established a Secretariat to carry out the instructions of the Council, to provide services to the members as decided by the Council, to liaise and communicate, and to conduct the daily operations of the Association.

The Association has always been committed to building the credibility of China-Appointed Attesting Officers, strengthening the cultivation of professionalism of China-Appointed Attesting Officers, enhancing their business ability to keep up with the times and reinforcing their sense of responsibility to put quality first and to strictly abide by the rules of attestation, and to continuously improve the quality of attested documents, thereby ensuring that the system of attestation can develop steadily in the years to come.

OUTLOOK

Looking back, the past is fruitful; looking forward, the future is vibrant. After 40 years of gradual development, the scope of business of China-Appointed Attesting Officers has been greatly expanded, and the procedures of attestation have been gradually standardized. As it reaches the age of 40, the China-Appointed Attesting Officer system has not only provided professional services for economic development and civil and commercial coordination between the two places but also opened up an effective channel for solving the problem of mutual use of attested documents between the Mainland and Hong Kong.

In recent years, the Mainland has introduced a policy of streamlining administration and delegating power to facilitate the public. The system of China Appointed Attesting Officers has also kept pace with the times. In response to the needs of different organizations using attested documents, the attested documents are specially designed.  For example, the simplified version of attested documents began to be used in January and November 2018 for industrial and commercial matters in Shenzhen and Dongguan is the first of its kind that uses a form format , which not only keeps the strict attestation procedures but also reflects the convenience of the attested documents and has won unanimous favourable comments. So far, seven cities, including the five cities in the Greater Bay Area, have started using the simplified version of attested documents. It can be said that the simplified version of attested documents is the result of consultation and coordination among the Association, China Legal Service (H.K.) Ltd. and official organizations that use attested documents in the Mainland, who are not confined to their inherent thinking, and it also lays a solid foundation for the computerization of attested documents in the future.

In the new era of rapid development of information technology, the China-Appointed Attesting Officer system continues to boost its business and improve its functions in practice. The Association and China Legal Service (H.K.) Ltd. have started the construction of an information technology platform for the attestation business. After the completion of the platform, China-Appointed Attested Officers can issue electronic attestation documents on the platform, and official organizations that use attested documents in the Mainland can also receive electronic attestation documents on the platform. It is convenient and fast, and can solve the problem of forgery and tampering with attested documents in one go. After the completion of the informatization, the China-Appointed Attesting Officer system will definitely develop continuously and steadily, and make greater contributions in promoting the prosperity and stability of our country and Hong Kong. 

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President, Association of China-Appointed Attesting Officers Limited

Mr. Ma Ho Fai is the President of the Association of China-Appointed Attesting Officers Limited and a Senior Partner at Messrs. Woo Kwan Lee & Lo, Solicitors. Mr. Ma has more than 40 years of legal experience. 

Mr. Ma specializes in various areas of law with considerable experience in PRC-related and Hong Kong conveyancing work. He is heavily involved in community service and holds many important public positions. Among other responsibilities, he is the Chairperson of the Travel Industry Authority, Non-Executive Director of the Insurance Authority and Chairman of the Protection of Wages on Insolvency Fund Board.

Mr. Ma was awarded the Gold Bauhinia Star in 2017. He was also elected as the Deputy of the 11th, 12th and 13th National People’s Congress PRC.