Authentic Instruments in Chinese Private International Law

Abstract

Professor Fitchen defines an authentic instrument as ‘a public document that allows the public official who registers or draws it up to record evidence concerning matters of fact concerning a judicial act that persons may (or must) have formally recorded in such a fashion as to raise a very strong evidential presumption that the factual matters so registered or recorded are, to the extent allowed by the legal system in which the authentic instrument is created, henceforward to be presumed accurate and ‘proven’.’ In the country where authentic instruments are issued by the authorised entities, they automatically receive legal effects to prove the recorded fact. The overseas effects of authentic instruments, however, are unclear. Since international judicial cooperation on authentic instruments does not exist, the procedural requirements and effects given to foreign authentic instruments largely depend on the domestic law of each country. The cross-border probative and executory effect of authentic instruments is a significant part of private international law, but is overlooked by Chinese private international law scholars and lawyers and will be discussed in this work.

Keywords: authentic instruments, notarial documents, enforcement of overseas authentic instruments, evidential effects, private international law