1. lntroduction

For many people, the first thing that comes to mind when thinking of a notary office is a will. However, are you aware of the other services provided by a notary office? This article introduces notarization services that are useful in various cases.

2. Business use

2.1 Notarized instrument with a compulsory execution clause

If the debtor of a monetary claim fails to pay and the creditor decides to use the compulsory execution procedures, the title of obligation is required. Private instrument contracts created only by the parties are not recognized as the title of obligation. In many cases, the creditor will file a proceeding for execution and win or finalize the case, and the final and binding judgment will be made in the title of obligation. However, this is a roundabout method and there is a risk of loss of target property. In preparation for such a case, if a notarized instrument with a compulsory execution clause is created when concluding a contract regarding monetary claims and debts, it will serve as the title of obligation and therefore, at the stage of default in the future, the creditor can skip the litigation procedures and immediately use procedures for compulsory execution. There are no restrictions on the contracts for which compulsory execution clause can be used. Some examples include loan agreements, debt approval and repayment contracts (rescheduling of existing monetary debt including tort damages, etc.), sales contracts, lease contracts, and guarantee contracts. In addition to business use, compulsory execution clause can also be used in relation to child payment, distribution of property, and compensation in conjunction with divorce. Additionally, monetary claims in the title of obligation are treated favorably in bankruptcy proceedings.

Monetary claims for which compulsory execution can be used are limited to those in which 1) the payment amount can be fixed (approximate amounts and variable amounts are not acceptable) and 2) the payment due date can be fixed (for example, "only on the last day of every month"). This comes down to the question of how to write contract terms.

2.2 Electronic fixed certified date

The fixed certified date system is a system which publicly proves that "the private document/electronic document existed on the date specified as the date certain." There are two methods for assigning a fixed certified date: 1) affixing a stamp to a private document on paper media and 2) assigning a fixed certified date to an electronic document using electronic data. The advantages of the electronic date fixed certified date compared to fixed certified date on paper media is that electronic documents are stored (the storage period is 20 years) and that the identical information can be provided (corresponding to the issuance of a certified copy). Companies which handle a large number of contracts can solve the backdating problem and store electronic documents for a long period of time by converting the contracts to PDF format and receiving an electronic fixed certified date. The fee is 700 yen for both paper and electronic media. If you want to save electronic information, there is an additional fee of 300 yen. Notary offices serve as electronic fixed certified date centers and are set up to promptly assign a large amount of electronic fixed certified date.

2.3 Authentication of private documents for foreign countries

Japan uses a seal registration system. Creating a private document, affixing a registered seal and attaching a seal registration certificate clarifies that "the private document was created by the person listed as the creator (not a forged document)." However, there are no seal registration systems in foreign countries. Therefore, in the case of private documents for foreign countries (private documents to be submitted to foreign government agencies and overseas financial institutions, companies, and other organizations and individuals), you may be asked by the overseas recipient to have the private document signed at the notary office and certified by a notary. When asking a notary to certify private documents for foreign countries, there are two important points: 1) the authentication method and 2) the extent to which certification of the institution is required after the authentication.

Firstly, there are two main methods of notary authentication.

◯ Signature authentication: The creator signed/signed and affixed a seal/affixed a name and a seal to the private document in the presence of the notary, and the notary attached an authentication statement to the effect that "the creator signed/signed and affixed a seal/affixed a name and a seal to the private document in the presence of the notary."

◯ Oath authentication: In front of the notary, the creator (1) took an oath that the contents of the private document are true, and (2) signed/signed and affixed a seal/affixed a name and a seal to the private document and the notary attached an authentication statement to the effect that "the creator signed/signed and affixed a seal/affixed a name and a seal to the private document in the presence of the notary after taking an oath that the contents of the private document are true."

The method selected depends on the intention of the recipient (whether signature authentication alone is sufficient or if an oath taken in front of a notary is required).

Secondly, regarding the extent to which the certification of the institution needs to be obtained after authentication, it may be necessary to obtain certification through stages (2) to (4) listed below depending on the intent of the recipient. Please check with the recipient to find out what stage of certification is required.

(1) No certification beyond the notary's authentication is required.

(2) In addition to the notary's authentication, certification from the Director of the Legal Affairs Bureau (verifying the notary's signature and seal) is required.

(3) In addition to certification from the Director of the Legal Affairs Bureau, certification from the Ministry of Foreign Affairs of Japan (verifying the official seal of the Director of the Legal Affairs Bureau) is required.

(4) In addition to certification from the Ministry of Foreign Affairs of Japan, the certification of the foreign consulate in Japan (verifying the certification of the Ministry of Foreign Affairs of Japan) is required.

In response to the stages listed above, notary offices located in some areas (Tokyo, Kanagawa Prefecture, Shizuoka Prefecture, Aichi Prefecture, and Osaka Prefecture) provide one-stop services in the form of authentication listing certified statements for stages (2) and (3) listed above (depending on the recipient country, a certificate with apostille omitting (4) is provided).

3. Cases with a high need for creating a will

Broadly speaking, there are two ways to make a will: a holographic will and a notarized deed will. If a person dies without leaving a will, the heir-at-law system is applied. In the majority of cases, the inheritance is executed through the partitioning of the estate. Partitioning of the estate is primarily determined by agreement of dividing inheritance among all legal heirs. If the agreement cannot be finalized, the issue will be brought to the family court. In some cases, partitioning of the estate is sufficient; however, in the following cases, it is highly necessary to leave a will.

◯ For cases in which you want to leave an inheritance which differs from the heir-at-law system: Cases in which you want to designate inheritance of a specific property or inheritance ratio (for example, leaving a specific piece of property to a specific child) will result in partitioning of the estate which differs from the heir-at-law system. Therefore, it is necessary to leave a will that clearly states your desires. The same applies to cases in which a business operator transfers the business assets to child positioned as successor (business succession).

◯ Cases in which there are bad relationships among children and peaceful discussions of dividing inheritance cannot be expected: If such cases are entrusted to the heir-at-law system, there is a high risk of conflict among brothers and sisters. Therefore, parents should leave a will and decide on the division of inheritance.

◯ Cases involving a couple without children: If the members of a childless couple wish for their respective spouse to inherit all of their assets, and if the deceased person has siblings, the siblings are entitled to a statutory share of inheritance (25%). However, there is no legally reserved portion of succession. Therefore, although the heir-at-law system results in partitioning of inheritance among siblings, a will can be left to insure inheritance of all assets by the spouse.

◯ Cases involving common-law marriage or same-sex couples: In such cases, the partner is not a legal heir. Therefore, a will is necessary to leave inheritance to the partner.

◯ Cases in which you want to leave inheritance to a person or organization other than a legal heir: It is necessary to use a will if you want to divide your inheritance with your daughter-in-law, son-in-law, or someone who has taken care of you, or if you want to donate to a charity. The same applies if you want to leave inheritance to a person who undertook the voluntary guardianship contract or post-mortem mandate contract described below.

4. Dealing with the problems of an aging society

4.1 Voluntary guardianship contract

A voluntary guardianship contract is a type of mandate contract that prepares for when the person creating the contract (the mandator) suffers from dementia in the future, resulting in the loss of his/her judgment ability and making it difficult to perform legally meaningful acts independently. In the voluntary guardianship system, a contract is signed with a person who will become the guardian (mandatary of voluntary guardianship) who will engage in property management and act as an agent as necessary in the future. In practice, the content of the voluntary guardianship contract is nearly standardized. Voluntary guardianship contract must be concluded with a notarized instrument and cannot be created using any other method.

There is a method of concluding a trust agreement for persons who want to take risks and manage their assets aiming for high returns, even in future situations where their judgment ability has declined. Trust agreements can also be concluded by notarized instrument.

4.2 Notarized instrument on living will

Advances in medical technology related to life-prolonging treatment have made it possible for patients to survive for many years even upon entering a vegetative state. On the other hand, there are people who wish to refuse excessive life-prolonging treatment and have a natural death. Under the current legal system in Japan, the discontinuation of life-prolonging treatment is not directly permitted and there is a risk that medical personnel who discontinue such treatment will be subject to criminal liability. One measure to reconcile this reality and the legal system is the declaration of death with dignity, which declares the refusal of excessive life-prolonging treatment and the exemption of medical personnel. The declaration of death with dignity must be shown to the doctor in charge prior to an applicable medical situation; therefore, it is desirable to prepare the declaration with a notarized declaration.

4.3 Post-mortem-mandate contract

When a person dies, there are various loose ends that must be attended to and legal affairs (post-mortem affairs) must be handled without waiting. Examples include cremation/burial, settlement of payments with hospitals, disposal of articles left by the deceased, organization and eviction for rented buildings, and cancellation of electricity, gas, water, and telecommunication contracts. Such post-mortem affairs have mainly been carried out by the families of the deceased. However, due to the declining birthrate and rising ratio of people who go through life without marrying, the number of elderly people without relatives is increasing. This has led to a rapid increase for cases in which there is no one to handle post-mortem affairs. People who anticipate such problems after their death can ensure reliable handling of their post-mortem affairs by securing the assistance of reliable acquaintances and specialists specializing in post-mortem affairs, and by concluding a post-mortem-mandate contract with notarized instrument at the notary office.

5. Conclusion

There are many other notarization services. If you are concerned about the necessary materials and fees for using such services, please utilize the Q&A format explanations on such points on the website of the Japan National Notaries Association (http://www.koshonin.gr.jp).

Toshihiko Niibori
Notary

In 1956, Toshihiko Niibori was born in Tokyo.
In 1979, he graduated from the Department of Law in the Faculty of Law, Chuo University (enrolled in a seminar on the Commercial Code taught by Professor Koremichi Hamada, a seminar on the Code of Civil Procedure taught by Professor Hiroshi Sumiyoshi and affiliated with the Ikuhoukai).
In 1981, he served as a legal apprentice (35th Class of Legal Apprentices).
In 1983, he served as a public prosecutor (starting with the Tokyo District Public Prosecutors Office, in charge of criminal investigation and trial at public prosecutors offices nationwide from Sapporo in the north to Fukuoka in the west. He engaged in national litigation affairs in the Litigation Department of the Tokyo Legal Affairs Bureau, and held positions such as Deputy Governor of the Deposit Insurance Corporation of Japan, the Director of the Nagoya Legal Affairs Bureau and a prosecutor at Supreme Public Prosecutors Office before his retirement.
In 2015, he became a notary (Aoicho Notary Office).

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