Weekly Case No. 1 | Effective legal documents and notarial certificates are not necessarily the basis for the court's determination of facts - Qian Mou v. Chai Mou Inheritance Dispute Case (First, Second and Retrial)

Lawyer Ye Qing, Deputy Director, Senior Partner, Secretary of the Xin Yi Branch of the Communist Party of China, and Director of the Business Guidance and Training Committee. Lawyer Ye Qing has a strong theoretical foundation and practical experience in civil, real estate, criminal defense, and intellectual property matters. He has published and won awards for numerous papers. He has served as a long-term legal counsel for various enterprises, including a department of the Zhejiang Provincial Government, provincial real estate development enterprises, national private enterprises, national Class I general contracting construction enterprises, municipal construction enterprises, financial institutions, and commercial circulation enterprises. He provides advice and strategies for preventing and avoiding legal risks and promotes the healthy development of his client units. He has participated in numerous government reserve enterprise, housing, land, and enterprise restructuring cases. 500 He has participated in numerous government reserve enterprise, housing, land, and enterprise restructuring cases.

Email Address: yeqing@htxls.com

Contact Number: 13857189233

Effective legal documents and notarized documents are not necessarily the basis for the court's determination of facts ——Case of Qian v. Chai: Dispute over Legal Inheritance (First, Second, and Retrial Instances)
 

【Case Summary】

The deceased Chai and Ong were husband and wife, and a house located in a certain area of Xiacheng District, Hangzhou City was jointly owned by them. 2010 Year 2 Month 11 Day and 2011 Year 7 Month 28 Day Chai and Ong passed away respectively, leaving no children. Chai was the niece of Chai and was raised by the couple since childhood. Qian was the son of Ong's sister and originally lived with his parents in Deqing. After the unexpected death of Ong's sister in the year, 1982 Ong brought Qian from Deqing to Hangzhou to raise and care for him. 1990 Year 9 Month Ong, stating that the couple had no children and that Qian had been raised by them since his mother's death, and that they had developed a deep relationship with him, applied for adoption notarization. At that time, they submitted a written application signed by both husband and wife, an application form bearing the seals of both husband and wife, a statement from Qian's father, proof from the neighborhood committee and neighbors, and proof from the town government, police station, and unit of Qian's father's location consenting to Qian's father giving Qian to his aunt's family as an adopted son and requesting that Qian's household registration be transferred to his aunt's home in Hangzhou. After review, the Hangzhou Municipal Notary Office issued on 1990 Year 11 Month 16 Day a certificate confirming that Chai and Ong adopted Qian as their adopted son in the year 1981 and have lived together for many years, thereby forming a de facto adoption relationship. After that, Qian failed to move his household registration to Hangzhou, so he returned to his father's side in Deqing to continue his studies and life, still addressing Chai and Ong as his aunt and uncle. In the year, 2009 Ong suddenly suffered a cerebral hemorrhage. In the year, 2011 Qian filed a lawsuit requesting the court to declare Ong incapacitated and appoint Qian as Ong's guardian. The court, after hearing the case, found that Qian's work and residence were not in Hangzhou City, making it inconvenient to take care of Ong. Chai had not infringed on Ong's legal rights during the period of living with Ong and explicitly requested to be appointed as Ong's guardian; under current circumstances, appointing Chai as Ong's guardian was more beneficial. The court therefore ruled to confirm that Ong was incapacitated and appointed Chai as Ong's guardian. Qian's lawsuit requested that the court rule that Qian had the right to inherit one-half of the house owned by Chai and Ong; Chai counter-sued requesting that the court rule that the house owned by Chai and Ong be inherited by Chai.

【Agency Strategy】                                                                                               

The defendant (counter-plaintiff) Chai entrusted Lawyer Ye Qing to act as the agent in the first, second, and retrial instances of this case. The agent argued:

First, Qian's relationship with Chai and Ong during his time living with them in Hangzhou was one of fostering rather than adoption, and no de facto adoption relationship ever existed between Qian and Chai and Ong.

According to 1981 Year 1 Month 1 the second paragraph of Article 20 of the Marriage Law implemented on Day (amended as the second paragraph of Article 26 in the year 2001 “the rights and obligations between adopted children and their biological parents shall be eliminated upon the establishment of the adoption relationship,” and 1984 Article (of the Opinions of the Supreme People’s Court on Several Issues Concerning the Implementation of Civil Policy and Law issued in the year 28 ) “If it is publicly acknowledged by relatives and friends or the masses, or certified by relevant organizations that a de facto parent-child relationship has existed for a long time, even without legal procedures, it should be treated as an adoption relationship,” the determination of de facto adoption relationships formed before the implementation of the Adoption Law should meet three conditions simultaneously. The first condition: relatives, friends, or the public acknowledge, or relevant organizations certify the parent-child relationship; the second condition: they have lived together for a long time as parent and child; the third condition: the rights and obligations between the adopted child and his biological parents have indeed been eliminated. In this case, none of the conditions are met for Qian. Firstly, relatives and friends did not prove that Qian lived with Chai and Ong as an adopted child and parent; secondly, Qian and Chai and Ong never addressed each other as father and son or mother and son, but as uncle and aunt; finally, Qian's father-son relationship with his biological father has never been eliminated.

Second, the certificate proving the de facto adoption relationship between Qian and Chai and Ong seriously violates the procedures for notarization, the content of the notarization has no relevant evidence to prove it and is inconsistent with the facts; there is sufficient contradictory evidence to overturn the certificate, which cannot be used as a basis for determining the facts of the case according to law.

(a) Article 16 of the then-implemented Provisional Regulations of the People's Republic of China on Notarization stipulates: “Parties applying for notarization shall personally go to the notary office to submit a written or oral application.” Article 18 stipulates: “Notaries must examine the identity and capacity of the parties to exercise their rights and obligations, examine whether the facts and documents of the parties' notarization and related documents are true and lawful.” Article 14 of the Provisional Rules on Notarization Procedures stipulates: “Parties applying for notarization shall submit documents that can prove their identity and documents and materials related to the application.” The materials retrieved from the case files of Hangzhou Municipal Notary Office confirmed that the notary did not follow the legally prescribed procedures for notarization, did not require the submission of the materials provided, did not require those who were present to be present, did not fulfil the obligation to examine and verify whether the materials provided were consistent with the notarization matter and lawful, resulting in a failure to ascertain the facts of the notarization, numerous errors in the notarized document, and the content of the notarization not conforming to the facts.

(b) The certificate that proves the de facto adoption relationship between Qian and Chai and Ong cannot be used as the basis for determining the existence of a de facto adoption relationship between Qian and Chai and Ong according to law.

1 Article 36 of the Notary Law stipulates that: "Notarized civil legal acts, legally significant facts, and documents should be used as the basis for determining the facts of a case, except where there is contradictory evidence sufficient to overturn the notarization." Article 67 of the Civil Procedure Law stipulates that: "Legal acts, legal facts, and documents notarized through legal procedures shall be used by the people's court as the basis for determining facts, except where there is contradictory evidence sufficient to overturn the notarization." Therefore, notarial certificates are merely a type of evidence in civil litigation; not all notarial certificates can be used as the basis for determining the facts of a case. In this case, the notarial certificate involved does not legally meet the conditions for being used as the basis for determining the facts of the case. First, the notarial certificate involved was not notarized according to the prescribed procedures; second, there is ample contradictory evidence sufficient to overturn the content of the notarial certificate. The original evidence retained by multiple police stations and community units directly proves the facts of the case. The contradictory evidence in this case forms a chain of evidence that comprehensively and multi-dimensionally proves that no factual adoption relationship exists between Qian Mou and Chai Weng, which is irrefutable evidence. There is no issue of the trial personnel being partial and biased and making subjective judgments, as Qian Mou claims.

2 Qian Mou and Chai Weng did not go through adoption notarization procedures. Adoption notarization is the notarization of an adoption civil legal act between the parties, while the notarial certificate involved in this case is a notarization of a factual adoption relationship, that is, a notarization of a legally significant fact. Adoption notarization and notarization of a factual adoption relationship are two different types of notarization; the notarization involved in this case is not adoption notarization.

3 Whether or not the notarial certificate is revoked does not affect the determination of the facts of the case, nor is it a prerequisite procedure for this case. According to Articles 39 and 40 of the Notary Law, if a notarial certificate contains errors, the notary office shall conduct a review and revocation; if there is a dispute over the content of the notarial certificate, a civil lawsuit can be filed with the people's court regarding the dispute. This case is a legal inheritance dispute. As evidence proving Qian Mou's status as a legal heir, the notarial certificate, under circumstances where both parties dispute the content and Chai Mou provides contradictory evidence, the court should ascertain the facts and make a determination; the parties do not need to file a separate lawsuit.

The civil judgment confirming Weng Mou as a person with no capacity for civil conduct and determining the guardian does not have probative value regarding whether an adoption relationship exists between Qian Mou and Chai Weng in this case.

The statement in the civil judgment that Qian Mou is an adopted son comes from the aforementioned notarial certificate; this statement does not have probative value for the disputed facts in this case. This case was accepted by the court under special procedures of the Civil Procedure Law; the determination was whether the applicant, Weng Mou, had the capacity for civil conduct, restricted capacity for civil conduct, and the designation of a guardian after being determined to have no capacity for civil conduct, which belongs to a non-civil rights dispute case. The nature of the case determined that the court only conducted a formal review of the notarial certificate and did not conduct a substantive review of the factual adoption relationship contained in the notarial certificate. The first-instance and second-instance courts have already made a determination on this issue in their judgments.

Judgment Result

This case, after the first instance, second instance, and retrial by the Zhejiang Provincial Higher People's Court, adopted the opinion of the defendant Chai Mou's agent, lawyer Ye Qing, ordering that the house of Chai Weng be inherited by Chai Mou, and dismissing Qian Mou's claim.

Analysis

The focus of this case is whether the plaintiff, Qian Mou, had a legally valid adoption relationship with the deceased. The plaintiff used the facts determined by the effective legal document and the notarial document as evidence to prove that an adoption relationship existed between the plaintiff and the deceased. The plaintiff's evidence seems sufficient and has strong probative force, but the effective legal document and notarial document are essentially still a type of evidence and do not have absolute evidentiary force; the facts confirmed by it can naturally be overturned by counter-evidence. Special procedure judgments may not conduct a substantive review of certain facts; therefore, such effective judgments do not necessarily become the basis for the people's court to determine facts. According to Article 9 of the Supreme People's Court's Several Provisions on Evidence in Civil Litigation, facts confirmed by judgments that have taken effect and facts that have been proven by effective notarial documents can be disregarded if there is contradictory evidence sufficient to overturn them.

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