1How to make good use of
Japanese Notaries
1. Features of Japanese notary system
1) What does a notary do?
A notary is a special public official undertaking notarization duties. A
notary is appointed by the Minister of Justice, and belongs to the Legal Affairs
Bureau or the District Legal Affairs Bureau.
The duties of a notary include creation of notarial instruments,
authentication of private documents and articles of incorporation, and the
attachment of officially-attested dates to documents.
2) Who can become a notary?
Currently, any person who fulfils the following criteria is eligible for
appointment by the Minister of Justice:
(a) Any person qualified as a judge, public prosecutor or attorney;
(b) Any person selected by the Notary Selection Committee, who
possesses academic and practical skills equivalent to those
professionals listed under (a) above, and who has been engaged in
legal affairs for many years.
3) How did Japanese notary system develop?
The Japanese notary system started with the Notary Rule of 1886. While
this Notary Rule was modeled on French notary system, apparently it was also2influenced by the laws of the Netherlands. Under this Rule the notary's authority
was limited to the creation of notarial instruments.
The current Notary Act, influenced by Germany (then Prussia), was passed
later in 1909 and the1886 Notary Rule was abolished. The Notary Act provides for
the authentication of private documents, along with the creation of notarial
instruments, as part of the notary's work authority.
The Notary Act 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 notarization 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.
4) Notaries Organization
In Japan, there are 50 Notaries Associations, one in each district
jurisdiction of the Legal Affairs Bureau, or the District Legal Affairs Bureau. The
Japan National Notaries Association ("Nippon Koshonin Rengokai" in Japanese) is
the national organization.
The Japan National Notaries Association aims at developing the notarial
system, as well as improving the notarial services and the quality of notaries by
giving guidance and communicating with local Notaries Associations and individual
notaries. The Japan National Notaries Association has one president, seven vice
presidents, twenty-five directors, and two auditors. Several administrative
directors and two executive directors are elected from among the directors. A
general meeting is held once a year and executive board meetings are held about
three times a year.
The Japan National Notaries Association has the following nine
committees: (1) Regulation Committee, (2) Planning Committee, (3) Public
Relations Committee, (4) Foreign Affairs Committee, (5) Document Form3Committee, (6) Editorial Committee, (7) Electronic Notarization Committee, (8)
Notarial System Committee, and (9) Notary Ethics Committee.
The Japan National Notaries Association joined the International Union of
Notaries in 1977 and three vice presidents and several councils of the Union have so
far been elected from the members of the Japan National Notaries Association.
2. Notarial instrument
1) What is a notarial instrument?
A notarial instrument is an official document prepared by a notary in
accordance with the law. As these are official documents, in addition to having a
high level of evidential value, if an obligor (debtor) defaults on a debt, it is possible
to enforce seizure of the debtor's real estate, personal assets and claimable assets in
Japan based on a notarial instrument without any court judgment being rendered.
2) What types of notarial instruments are there?
Notarial instruments include, without limitation:
- Notarized wills/will instruments;
- Notarial instruments for contracts pertaining to monetary loans;
- Notarial instruments related to payment of damages for mental
anguish or payment of child support, in connection with divorce; and
- Notarial instruments relating to the leasing of land or buildings.
3) Can I have a notarized 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 the application of 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.44) Can a notarial instrument be made by an agent?
A notarial instrument can be requested not only by the parties concerned
but also by an agent. However, a will and a voluntary guardianship contract
cannot be drawn by an agent. When making a request, the parties concerned must
prove their identities with their registered seal certificates or the like. The agent
must present a power of attorney, and confirm their identifications.
5) What are the fees for making notarial instruments?
The fees notaries can charge are fixed by a Cabinet Order.
a. The basic fees for making notarial instruments concerning
contracts, wills etc. are principally determined according to the Notarial Value as
follows.
Notarial Value (yen) Fee (yen)
Less than and including 1 million 5,000
Over 1 million to 2 million 7,000
Over 2 million to 5 million 11,000
Over 5 million to10 million 17,000
Over 10 million to 30 million 23,000
Over 30 million to 50 million 29,000
Over 50 million to100 million 43,000
Over 100 million to 300 million 43,000+13,000 per 50 million
Over 300 million to 1 billion 95,000+11,000 per 50 million
Over 1 billion 249,000+8,000 per 50 million
b. The above fees are for one juristic act. For clarification see the
examples below. If a contract is unilateral, like a donation or a loan, the value of
the donated property or the loan is the "Notarial Value" (see the table above). If a
contract is bilateral like an exchange, the combined value of the exchanged items is
the Notarial Value. And in the case of a bilateral contract in which one party pays
money for a thing or service, the Notarial Value is determined by doubling the
amount paid.5Example: The Notarial Value of a sales contract in which the buyer pays
one million yen for merchandise would be two million yen, making the fee 7,000 yen.
c. If a contract concerns periodic payments, the total amount of
payment during the whole term is the Notarial Value, but if the payment term
exceeds 10 years, the calculation is capped at 10 years.
Example: In a lease contract, if the lessee leases a house for three years
with a rent of 100,000 yen per month, the Notarial Value is 7,200,000 yen (=
100,000 yen/month x 36months x 2 (bilateral)), making the fee 17,000 yen.
Example: If, in a divorce case, a husband agrees to pay 50,000 yen per
month for child support until the 3-year-old child becomes of age (20), the Notarial
Value is 6,000,000 yen (= 50,000 yen/month x 12months x 10 (maximum of years)),
making the fee 17,000 yen.
d. In the case of a will, the number of juristic acts is calculated by the
number of beneficiaries.
Example: In a will, if the testator’s wife is bequeathed land worth 70
million yen and savings worth 40 million yen, totaling 110 million, his son is
bequeathed savings worth 30 million yen, and one of his friends is bequeathed 1
million yen in cash, the fee would be 84,000 yen (= (43,000 yen+13,000 yen) + 23,000
yen + 5,000 yen).
But if the total amount of an inheritance is 100 million yen or less, a special
fee is added to the fee calculated as stated above.
e. In the case where the Notarial Value cannot be measured (for
example in the case of voluntary guardianship contract), the fee is fixed at 11,000yen.f. There are some other rules and various fees besides the basic fees.
Please ask the notary to whom you are going to entrust about them.63. Authentication of Private Documents
1) What is authentication of private documents?
A notary certifies that the private document is genuine. Specifically, if 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 by
him/herself or by his/her agent that the signature on the private document is
his/her own in the presence of the notary, the notary adds a note on the private
document whereby, by virtue of its evidential value, the genuineness of that
document is certified.
As the notarizing 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 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.
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 his/her 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) What evidence is required for authentication of private documents?7When the signatory of a private document comes to a notary office seeking
authentication, any one of the following six types of document is required, in
addition to the document to be authenticated.
1. Passport
2. Driver's License
3. Residents Registration Card (with a full-frontal face photograph)
4. Individual Number Card (so-called My Number Card)
5. 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.)
6. Residence Card
If the signatory is signing in his capacity as representative director of a
company, the certificate of seal impression of the representative director and
certificate of registration of the company are required.
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?
If the person prepares a declaration in which what the person wishes to
convey to the recipient is stated and the document in question is attached as an
exhibit, then a notary can authenticate the signature of the person who executes
this declaration.
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.
6) What is an affidavit or sworn statement?8This involves swearing in front of a notary that the content of the private
document is true. Sanctions will be applied in case of false statement. 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
notarization by a notary to that effect. In these cases an affidavit should be used.
The fee for notarization of an affidavit written in a foreign language is
17,000 yen per document.
7) What should I do after I obtain authentication from a notary in the case of a
document for use in a foreign country?
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.
This authentication is attached to the private document authenticated by
that notary. The Ministry of Foreign Affairs then attests that the official seal of the
Director of the Legal Affairs Bureau is true. 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
organization (such as a private company, and where there is no objection by the
other party such as when there is no requirement for submission of the document to
an official body in the recipient country) then sole authentication by a notary is
sometimes acceptable.
Japan is a member country of the 1961 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9authentication" is not required and the private document may be sent immediately
to the overseas party.
If the recipient is located in a foreign country which is a member country of
the Hague Convention, the notary offices in Tokyo, Kanagawa, Osaka, Aichi and
Shizuoka Prefectures 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 will be required is "consular authentication" from a local embassy or
consulate.
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
1) What are articles of incorporation?
Articles of incorporation are essentially the constitution of a corporation
and are rules relating to its purpose, internal organization 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 recognized 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 to be located.10Articles of incorporation changed after the company is set up need not be
notarized.
2) What is the Reporting System of Beneficial Owners?
In accordance with the amendment of the Ordinance for Enforcement of the
Notary Act, since November 2018, a client such as an incorporator/founder of stock
company, general incorporated association and general incorporated foundation is
required to report a notary about information of a beneficial owner’s name, address,
date of birth, etc. and whether the beneficial owner is an organized crime group
member and/or international terrorist at the time of establishing the legal entity.
A beneficial owner is a person below:
In case of stock company;
(1) a person who holds shares over 50 per cent,
(2) if no one holds share over 50 per cent, a person who holds share over 25 per cent,
(3) if there is no one satisfying the requirements of (1) and (2) above, a person who
has controlling influence over business activities of the company, or
(4) if there is no one satisfying the requirements of (1), (2) and (3), a representative
director of the company to be established.
In case of general incorporated association and general incorporated foundation;
(a) a person who has a power to influence over business activities of the
association/foundation, or
(b) if there is no one satisfying the requirements of (a) above, a representative
director of the association/foundation to be established.
If a beneficial owner is recognized as an organized crime group member and
the incorporation of the judicial person is deemed as illegal, a notary cannot
authenticate the articles of incorporation.
This is to prevent unlawful usage of a judicial person (e.g., money laundering,
providing fund to terrorists, etc.) by an organized crime group member and other
like through promoting transparency of a judicial person by way of grasping a
beneficial owner of a judicial person considering international and domestic
movement in this field.
The Statement of Beneficial Owners must be submitted in Japanese, but just
for your reference, English translation of the Statement is available here (click
here).
For your reference, this Reporting System of Beneficial Owners is introduced
in "FATF BEST PRACTICES ON BENEFICIAL OWNERSHIP FOR LEGAL11PERSONS" issued on October 2019. See its page 35 available at the website (click
here):
https://www.fatf-gafi.org/media/fatf/documents/Best-Practices-Beneficial-Ownershi
p-Legal-Persons.pdf.
3) What are the fees for notarizing articles of incorporation?
The fee for notarizing articles of incorporation depends on capital amount
or value of property(to be contributed at the incorporation (hereinafter "capital
amount" for the both) indicated in the articles of incorporation in case of a stock
company and special purpose company:
a) the fee of 30,000 yen for the capital amount of less than 1,000,000 yen,
b) the fee of 40,000 yen for the capital amount of 1,000,000 yen or more and less
than 3,000,000, and
c) the fee of 50,000 yen for the capital amount of 3,000,000 yen and more.
If only lower limit amount to be contributed at the incorporation is indicated in the
articles of incorporation, the fee is 50,000 yen.
The fee excludes the cost of a certified copy. Stamp duty incurs an
additional cost of 40,000 yen. However, when articles of incorporation is e-notarized,
there is no need to pay stamp duty.
For your reference, the fee for notarizing articles of incorporation other
than the above-mentioned companies such as general incorporated
association/foundation, etc. is 50,000 yen as in the past.
4) Do foreign individuals or companies have the legal capacity to incorporate a
company in Japan?
Foreign individuals or companies have the legal capacity to incorporate a
company in Japan. As for documents required for notarization of articles of
incorporation, refer to
5) Introduction of Tokyo One-Stop Business Establishment Center
The Tokyo One-Stop Business Establishment Center unifies the
procedures for establishing a business. Experts on setting up a company including
a notary and a judicial scrivener are stationed there. The Center helps you
Click12complete filing procedures for certification of articles of incorporation and company
registration etc. which are required to start a business.
URL: https://www.startup-support.metro.tokyo.lg.jp/onestop/en/
English and Japanese languages are available on the website.
Location: Ark Mori Building, 7th Floor, 1-12-32 Akasaka, Minato-ku, Tokyo
Telephone: +81-(0)3-3582-8352
5. Officially-attesting Dates
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 utilized 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.
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, and must contain the
signature or the name-seal of the person who prepared it.
3) What are the fees for attesting official dates?
The fee for attaching an officially-attested date is 700 yen per document.136. e-Notarization
1) e-Notarization is available for the following five notarial acts.
(1) Authentication of e-documents
This includes authentication of articles of incorporation prepared
in digital form.
(2) Attaching officially attested date to e-documents
(3) Preservation of notarized e-documents
(4) Supplying a certified duplicate copy of e-documents under (3)above.
(5) Certifying that an e-notarized document which has been under the
possession of a person other than notaries has not been altered and
is identical with the e-document preserved under (3)above.
2) Characteristics of Japanese e-Notarization
System
e-Notarization is performed through a system which is called
e-Notarization Centre. The Centre uses a Virtual Private Network service (VPN).
The Japan National Notaries Association
("JNNA")owns and maintains the Centre
at its own cost. The System is built on a PKI (Public Key Infrastructure).
Technical maintenance of the Centre is entrusted by JNNA on a
contractual basis to a private company with an established reputation.
Procedure
A client prepares an e-document as a PDF document, and executes a digital
signature on the e-document.
A request for e-notarization is made on-line on the Internet. For this
purpose, the Ministry of Justice provides a reception page on the Ministry's website
for clients of e-notarization. Applications accepted on this page are transferred to
the JNNA e-Notarization Centre for notarization by a notary.
A notary downloads the e-document from the server of the Centre to his/her
terminal in his/her office, and examines it to see if it satisfies the necessary
requirements for notarisation.
The notary then takes acknowledgement of the e-signer (i.e., client). The
client must appear in person before the notary. This is because the general14doctrine of physical appearance before the notary applies to e-notarization.
However, as noted earlier, agents may participate in place of the principal in
e-notarization.
When the notary is satisfied with the acknowledgement, he/she attaches an
acknowledgement certificate with his/her digital signature to the e-document, and
saves it in a CD or other media for storage to give it back to the client Digital
certificates for notaries are issued by the relevant Government department.
3) Reality of e-Notarization
Statistics show a sharp increase in the number of authentications of
digitally prepared articles of incorporation. In 2020, the total number was
approximately 82,000, eighty-two (82) times more than that in 2004 when the figure
was 1,000.
4) What is e-Notarization through TV phone system?
Before March 2019, even in the case of e-Notarization of articles of
incorporation and other documents as explained above, the client or his/her agent
had to visit a notary office and to take the procedure for his/her identification in the
presence of a notary.
Since 29 March 2019, however, in accordance with the amendment of the
Ministry of Justice Ordinance, e-Notarization of articles of incorporation and other
documents has been available by way of identifying the client through TV phone
system without visiting a notary office if the following requirements are met:
a) In case where a client such as an incorporator makes digital signature to articles
of incorporation and applies authentication of a notary through online, or
b) In case where a client such as an incorporator authorizing an agent with power
of attorney to which the client’s digital signature has been affixed, and the agent
also makes digital signature to the articles of incorporation and applies
authentication of a notary through online.
In order to obtain e-Notarization through TV phone system, since a client
such as an incorporator or his/her agent applying authentication of a notary
through online needs some preparatory steps to install computer software such as
Google Chrome for a personal computer or Face Hub application for a smartphone,
please contact a notary office beforehand.157. Notarial instruments for witnessed fact
Notarial instruments for witnessed fact are notarial instruments in which a
notary makes a notarial instrument for a fact related to a private right that he/ she
has actually witnessed and experienced. Facts covered by this procedure are:
(1) minutes of shareholders meetings;( 2) opening and closing of a safety deposit box
in a bank; (3) the name seal of the owner of the property in a bankrupt estate; (4)
the preparation of an inherited property; (5) practice, etc. of an invention. With
respect to (5) "practice, etc. of an invention", there are two options: (i) a notarial
instrument to be used for witnessed facts to be used for eliminating the novelty of a
patent; and (ii) a notarial instrument to be used for witnessed facts to prove prior
use and patent infringement, etc.
The basic fee for making this kind of notarial instrument is 11,000 Yen per
hour needed to witness fact and record thereof in an instrument.
8. Petit Advice
Location of the notary office can be obtained from the website of the
relevant Legal Affairs Bureau and also from the Japan National Notaries
Association.
Some notary offices have only one notary, who is authorized to prepare
instruments. This notary may, at times, be away from the notary office. It is
advisable, therefore to make schedule arrangements by telephone in advance of a
visit to the notary office. This will ensure that the required documents are
correctly prepared, and the procedure is carried out smoothly.
NIPPON KOSHONIN RENGOKAI
Japan National Notaries Association
Daido Life Insurance Kasumigaseki Bld., 5F
4-2 Kasumigaseki 1-chome,
Chiyoda-ku, Tokyo 100-0013
Japan16Phone: 03-3502-8050 (Domestic) +81-3-3502-8050 (International)
Fax: 03-3508-4071 (Domestic) +81-3-3508-4071 (International)
Website: http://www.koshonin.gr.jp
E-mail: honbu@koshonin.gr.jp