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Presentation (French)


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Presentation (French)

  1. 1. Civil Law Notaries : The profession in France
  2. 2. Guarantors of public interest legal services <ul><li>Notaries are lawyers. They are named as judicial officers by the State to confer official character to private documents. They draft deeds, contracts and testaments and furnish impartial counsel to all or either of the parties in a transaction. </li></ul><ul><li>This act has the same effect as a court order. Notaries’ acts are binding for immediate execution: No further legal procedures are required. The acts are archived by each notary and are the full equivalent of public record. </li></ul>
  3. 3. <ul><li>French notaries have long been the privileged advisors </li></ul><ul><li>of families at life’s important moments. In marriage, in estate </li></ul><ul><li>planning and probate and in the purchase of a house or the </li></ul><ul><li>creation or incorporation of businesses, notaries provide the </li></ul><ul><li>legal security expected by those who call upon the law . </li></ul><ul><li>The law requires these to be located throughout the </li></ul><ul><li>country, to ensure that all citizens have full access to impartial </li></ul><ul><li>legal services. </li></ul>
  4. 4. The authentic act : a guarantee of legal security to contracts and deeds <ul><li>French notaries receive a delegation of judicial authority from the Minister of Justice, symbolized by the personal seal affixed by the notary to each authenticated act . </li></ul><ul><li>Notaries' authentic acts are binding with respect to the contracting parties’ mutual obligations. </li></ul><ul><li>The acts are kept indefinitely and are the equivalent to public archives </li></ul><ul><li>They are binding and require no subsequent procedure before execution by an officer of the court </li></ul><ul><li>The authentic act is admissible as evidence . A notarial act thus has the same effect a court order. </li></ul>
  5. 5. A trusted advisor to families <ul><li>Notaries are legal specialists in contract, real property, family and estate law, but they are above all generalists, with an overall vision of clients’ interests and needs . </li></ul><ul><li>The notary can thus often contribute to the settlement of estates without acrimony, and without recourse to costly adjudication </li></ul>
  6. 6. The fields of notarial activities d c b a An expert in real estate matters, the notary draws up deeds of sale of all forms of real property, assures title and ensures closing
  7. 7. A profession organized to ensure the highest standards <ul><li>Notarial ethics and high standards serve to reinforce public trust. </li></ul><ul><li>Notaries' ethics are rooted in a humanistic vision of the Law as a means to ensure justice and the protection of the weakest . </li></ul><ul><li>As judicial officers, notaries are sworn to uphold the fundamental values of impartiality, integrity, confidentiality, responsibility and solidarity . This is the basis for the trust conferred on notaries by clients – a broad public trust in contracts sought by the Law . </li></ul>
  8. 8. Procedure and education for notaries <ul><li>Becoming a notary requires the candidate to acquire thorough and detailed knowledge of the law along with solid professional experience. Notaries are lawyers with specialised post-graduate degree and two years training in notarial practice. </li></ul>
  9. 9. <ul><li>The qualification as a notary can be obtained after seven years, following the French « baccalauréat » or high school degree : </li></ul><ul><ul><ul><li>To become a notary, the candidate must complete a Master degree in legal studies and a postgraduate « DESS » Degree in notarial law at one of 18 accredited universities. </li></ul></ul></ul><ul><ul><ul><li>The « DESS » can also be earned through a special program including courses and practical training, following the Masters degree. It is a one year program provided by a Centre de formation professionnel notarial (CFPN) and closed by a specialised exam. </li></ul></ul></ul>
  10. 10. <ul><li>The CFPN is a postgraduate study and training center sponsored by the profession. </li></ul><ul><ul><ul><li>In both cases, two years of training in a notarial office, combined with law courses, leads to the diplôme supérieur du notariat. </li></ul></ul></ul><ul><ul><ul><li>Experienced notarial clerks can also obtain the diplôme supérieur du notariat through internal promotion. </li></ul></ul></ul>
  11. 11. <ul><li>Admission to the profession may also be granted by the Conseil supérieur du notariat (CSN) to highly experienced legal specialists (magistrates, attorneys, teachers in law schools, corporate lawyers) who share notaries’ conception of public service. </li></ul><ul><li>Vocational training is provided through the Institut national de formation notariale (INAFON) (National training institute for notaries) and through the Université du notariat (Notarial summer university), both of which provide accredited continuing education to notaries and their staffs. </li></ul>
  12. 12. II. “DESS” postgraduate degree in notarial law TWO PATHS TO A NOTARY DEGREE I. Masters Degree in Law A University path for law students Thesis III. Thesis IV. NOTARY DEGREE A 2-year seminary program 2 years training A 2-year University program A work-study path for working professionals CFPN* work-study program Diplôme d’Aptitude aux Fonctions de Notaire
  13. 13. <ul><li>The Profession also sponsors several specialised research and training institutes: </li></ul><ul><li>-    The Institut notarial de l'entreprise (INE) (Notarial institute for business law) </li></ul><ul><li>-    The Institut notarial de l’immobilier (INDI) (Notarial Institute for Real Estate Law). INDI establishes the Profession’s national real estate markets index </li></ul><ul><li>-     The Institut notarial du patrimoine (INP) (Notarial institute for estate management). INP encourages notarial counsel in estate management. </li></ul>
  14. 14. Role of the notaries’Association <ul><li>French law creates various national, departmental and regional governing bodies for the profession. They regulate ethics and professional practice of notaries and control their implementation. These bodies represent the profession nationally and internationally. </li></ul><ul><li>The Departmental Chambers of Notaries represent all notaries working in the same D épartement. Working in close collaboration with the Attorney General, each chamber has authority to recommend disciplinary sanctions in case of breach of professional ethics. These Departmental Chambers are gathered into 33 Regional Councils representing the notaries of a Région (a group of Départements which also corresponds to the regional administrative structure in France (the French Appeal Courts). </li></ul>
  15. 15. <ul><li>On national level, the Conseil supérieur du notariat, or High council of notaries, determines and implements the profession’s policy, proposes legislation and represents the profession. The CSN executive board is elected by notaries, and names a President for two years. The CSN has a permanent staff of 80 professionals and employees. </li></ul>
  16. 16. Election of the notarial organisations in France Departmental Chambers Notaries of France Regional Councils Delegates of the Conseil supérieur du notariat (High council of notaries) President and executive board of the Conseil supérieur du notariat elect elect elect elect
  17. 17. <ul><li>The CSN manages research and training institutes in behalf of the profession. They provide legal studies, vocational training for notaries and intervene in the dialogue with Government officials and lawmakers. </li></ul>
  18. 18. Legal form of notarial offices <ul><li>French notaries often work together in an office as a partnership. However, some notaries manage their office alone. </li></ul><ul><li>Different forms of partnership exist in France : </li></ul><ul><ul><li>-      Since 1966, a notary can be partner and exercise his profession with other notaries in the frame of a Civil Professional Society. This type of society manages only one office. </li></ul></ul><ul><ul><li>-    Since the Law of 31 December 1990 and the Decree of 13 January 1993, the notaries can found a Liberal Exercise Society. The Corporate Law is nearly entirely applicable to this type of society, except some dispositions. </li></ul></ul><ul><ul><li>-      Partnership Society. This type of society cannot own the office. Each notary works in his own office for his own interest; The society is only a form of cooperation between its members. </li></ul></ul>
  19. 19. Laws and regulation about notaries and notaries offices <ul><li>The notarial profession has been created by the Law Ventôse An XI of the 17 March 1803. The profession was regulated by ordonnance of 2 November 1945. The code of professional ethics is fixed by different laws and regulations, for example : </li></ul><ul><li>-        Law of 17 March 1803, </li></ul><ul><li>-          Ordonnance of 2 November 1945, </li></ul><ul><li>-          Decree of 3 November 1967, </li></ul><ul><li>-          Decree of 26 November 1971, </li></ul><ul><li>-          Decree of 24 December 1979. </li></ul><ul><li>  </li></ul>
  20. 20. <ul><li>According to the article 13 of the decree of 19 December 1945, it is prohibited for a notary to practice a commercial activity. In the same way, the notary is limited in his financial activity. Since the decree of 20 July 1964, the notary can not participate in a credit operation unless it is recorded in an Authentic Act. Some rules of Criminal Law are specially applicable to notaries in order to penalise misappropriation of corporate funds, breach of trust or an act ultra vires. </li></ul>
  21. 21. Regulations of notaries’management and their associations <ul><li>The Ordonnance of 2 November 1945 is the main and fundamental regulation of management of Notaries’ Association. </li></ul><ul><li>Moreover, the notarial profession also has to apply important principles to its activity. Indeed, as judicial officers, notaries have to respect the fundamental values of impartiality, integrity, confidentiality, responsibility and solidarity . That is why clients trust notaries – a broad public trust in contracts sought by the Law. </li></ul>
  22. 22. Measures and solutions for preventing competition between notaries <ul><li>The National Regulation and the Inter-courts regulation following the Decree of 26 November 1971 establish the bases of relationships between notaries. </li></ul><ul><li>Notarial cooperation has to comply with the principles of mutual help and fraternity. Different rules are foreseen: </li></ul><ul><ul><li>-      The free choice of a notary for the client, </li></ul></ul><ul><ul><li>-      The prohibition of advertising for the notary, </li></ul></ul><ul><ul><li>-      The use of the title of notary is regulated, </li></ul></ul><ul><li>The notary has to respect the fees determined by Decree </li></ul>
  23. 23. How do the notaries pay their taxes ? <ul><li>For a deed executed by a notary, a proportion is assigned to the payment of their taxes. The taxes are assigned for the State, Local Communities ( Communes, Régions, Départements ), V.A.T, Registration Taxes and Excise Stamp. This proportion represents 8/10 of the sum of the deed. Public Taxes vary with the type of deed. </li></ul>
  24. 24. Ressources of revenue and expenditure of notary offices <ul><li>The revenues are composed of fees and compensations. Revenues represent 1/10 of the sum transferred by the deed the notary executes. The decree of 8 March 1978 fixes the fees of the profession. The remuneration is the same for all notaries throughout the country. The Decree sets different types of deeds, each one with a different table of prices. Expenditures are the sums paid by the notary to obtain documents so as to ensure the security of the deed (Urban documents, Cadastre documents, Mortgage Registry documents, Geometer documents… ). Expenditures represent 1/10 of the sum transferred by the deed. </li></ul>
  25. 25. The responsability of notaries <ul><li>Notaries’ clients are protected through a system of mutual solidarity of all French notaries. Notaries are thus jointly accountable to their clients. The profession maintains national and regional guarantee funds which complement the commercial insurance required of each notary and office. </li></ul><ul><li>When errors occur, when a notary does not comply with notarial ethics and rules or when some of his deeds disappear or deteriorate, the profession provides a collective guarantee for its clients on two levels : </li></ul><ul><ul><li>-    The notaries of each region jointly fund a regional guarantee fund. </li></ul></ul><ul><ul><li>-  The national guarantee fund is attached to the Conseil supérieur du notariat (CSN). </li></ul></ul>
  26. 26. <ul><li>Within the legal professions, this mutualisation of professional risk is unique. Notaries are the only legal profession whose members are both jointly and individually accountable to their clients. </li></ul>