Authentication

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This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

The certification is an official certification of the correctness of a signature or copy , as a public certification by a notary or as an official certification by another authority authorized to do so under state law . It is generally a certificate stating that duplicates match the original and especially in legal transactions a legal formality , after which signatures in specific contracts or documents must be made through official certification before a notary.

Notarization is to be distinguished from certification . In the case of certification, only the signature is certified, whereas the certification also relates to the content of the document.

Authentication of a multi-page document (sample) with scaling

General

Legal form requirements are an exception, so that legal traffic is not unnecessarily difficult. Therefore, large areas of the law of daily life are free of form, especially the purchase contract . However, there are a few exceptions where the law specifically provides for public authentication. Then she meets one

  • Warning function : The declarer should be protected from hasty commitments because of the risks of the business and a
  • Evidence function : The form should clearly clarify whether and with what content the transaction was legally valid through proof of authenticity of the signatures.

Public authentication

A distinction must be made between the authentication of signatures and copies.

Signatures

If public authentication is required by law for a declaration, the declaration must be drawn up in writing and the signature of the declaring party must be certified by a notary ( Section 129 BGB ). Only in Rhineland-Palatinate is it legally stipulated that public notarizations may also be carried out by certain authorities (Section 2 of the Rhineland-Palatinate Law on Authentication). This regulation requires the declaration in writing . In § 126 , para. 1 BGB, it is further determined that, for a requirement of writing the bare hands is notarized. The notary should only certify signatures or hand signals if they were carried out in his presence. Notarial authentication is the certificate that the signature or the hand sign in the presence of a notary has been carried out or recognized by the declaring party at the specified time ( § 39 , § 40 BeurkG ). It also confirms that the person named in the certification note and the person making the declaration are identical.

However, the certification only relates to the authenticity of the signature and any authorization to represent, not to the content of the document. According to Section 40 (5) BeurkG, the certification of a blank signature, i.e. without any text above it, is therefore also permissible. Public authentication as such guarantees that the signature on a document comes from the specified issuer . A distinction must be made between this and the evidential value of such a subsequently amended document. The presumption of Section 440 (4) ZPO , according to which the text above the signature originates from the person whose signature is certified , does not apply to the change . A public document in the sense of § 415 ZPO is only the certification note, the declaration itself is a private document.

In Hesse, the head of the local court is also authorized to publicly authenticate signatures in accordance with Section 13 of the Hessian Local Court Act. Since July 1, 2005, the notifying persons of the supervision authority are also responsible for the certification of signatures or hand signals under precautionary powers and supervision orders ( § 6 Abs. 2 BtBG ).

Transcripts

When a copy is certified, it confirms that it matches the main script. The main writing can be the original , a certified copy or a copy . The certification publicly confirms that a copy is identical in content to the original (original). This certification does not at the same time certify the authenticity or validity of the original, but merely the agreement of the content between the original and the copy. However, a certified copy of a copy of the original is not possible.

The certification note contains

  • the establishment that the certified copy / copy corresponds to the document presented,
  • the exact designation of the document, the copy / copy of which is to be certified (unless the certification note is attached to the copy itself),
  • the place and date of the certification, the signature of the notary performing the certification and the official seal.

Notaries

  1. Notaries
  2. The federal states are empowered by law to transfer responsibility for the public certification of copies or signatures to other persons or bodies. For example, this is done in Rhineland-Palatinate through the state law on the authorization to certify ( § 2 BeglG).

Official certification

Official certification must be distinguished from public certification. Such certifications serve to certify the evidential value of documents when they are presented to an authority. The legal basis for the official certification of copies and signatures can be found in § 33 and § 34 of the Administrative Procedure Act (VwVfG) of the federal government or in the parallel provisions of the federal states . In social law , the parallel provisions are § 29 , § 30, Tenth Book of the Social Code (SGB X). The ability to be authenticated is partly regulated differently in state laws. For example, Section 34 of the Administrative Procedure Act for Baden-Württemberg stipulates that the authorities specified by statutory order are authorized to authenticate signatures.

Only the authorities carrying the seal can officially authenticate, because the official seal according to Section 33 (3) No. 4 VwVfG is required for an official certification to be legally valid . Official certification is void without a seal . The bodies responsible for the seal include, in particular, municipal administrations , districts and lower administrative authorities (e.g. local mayors and local administrators), local court officials in Hesse (Section 13 OGerG) and local mayors and municipal administrations in Rhineland-Palatinate ( Section 2 BeglG), city ​​administrations (town hall), district administrations , Authorities, police , courts or churches organized under public law. The boards of directors of the publicly organized savings banks , who are the authorities under state law, can issue signed public documents with their official seal, provided they have drawn up the documents themselves. According to most of the savings bank laws of the federal states, the savings banks are entitled to seal (e.g. §§ 23, 10 Sparkassengesetz Baden-Württemberg).

The state law is partly inconsistent, so that a detailed examination is recommended in each individual case. The certification is correct if the certification note is provided with an official seal and the note has been signed by the certifying party. Certification by these institutions does not meet the formal requirements of § 129 BGB, because public certification (and non-official certification) is required here. Certifications by lawyers , associations , auditors , accountants (even if they have a seal ) are not recognized.

Legalization of civil status documents

There is a special feature for the authentication of civil status documents . Section 2, Paragraph 1 of the PStG Notarizations and notarizations for purposes of civil status are only carried out in the registry office by notary persons (registrars) appointed here. The same applies to the issuing of civil status documents and other public documents. The responsibility of the notaries, other notary persons or other bodies for public notarizations and certifications remains unaffected. Birth, marriage and death certificates and certified copies of the birth, marriage or death registers of registry office , which is intended to have the same evidential value as the original itself ( § 54 para. 2 PStG), can according to § 55 2 PStG para. Only create the responsible registrar (electronic transmission to another registry office is possible). It is true that the notary is also authorized to issue a certified copy from the civil status register or from civil status documents; However, this does not count as a civil status certificate according to § 54 PStG, so that it does not have the same evidential value as the civil status book itself or a certified copy issued by the relevant registrar. However, if the notary submits a publicly certified copy of a civil status certificate to the land registry , for example , the proof is duly provided. The public deed within the meaning of Section 29, Paragraph 1, Clause 2 of the GBO is then namely the copy of the properly issued civil status certificate that has been authenticated by the notary public.

The notary can create certified copies of civil status documents in accordance with Section 20 Paragraph 1 Clause 1 BNotO in conjunction with Section 42 BeurkG according to the general principles. The German Notarial Institute assumes in an expert opinion that a notary is also authorized to create certified copies of the civil status register. Their evidential value extends only to the fact that the original of the civil status certificate was available at the time the certified copy was created and that the copy corresponds to this original. These notarized copies do not have the special evidential value of § 54 PStG (i.e. as a replacement for the civil status registers themselves). In this context, the BayObLG had decided that “certified photocopies of civil status documents lack the evidential value according to § 54 PStG; The probate court can decide whether it is correct. Original documents of the civil status documents are only required if there are doubts as to their correctness. "

Notaries

The group of persons authorized to certify is restricted by law to bodies carrying the seal . The following persons are entitled to certify copies in Germany:

  1. Notaries ,
  2. Officials who issued the document or with whom it is kept,
  3. other notifying persons (e.g. notifying person of the youth welfare office , see. § 59 SGB ​​VIII ; the clerk of the office of a court , see. § 169 ZPO, § 153 GVG ),
  4. Municipal secretaries or officials or employees commissioned by the mayor ,
  5. Positions of religious societies under public law .

Legal transactions that require a form

The publicly certified form is particularly necessary for entries and registrations in public registers. Applications for entry in the commercial register are to be submitted electronically in a publicly certified form in accordance with Section 12 (1) of the German Commercial Code ( HGB) , and the official seal can be displayed electronically. If an original or a simple copy is to be submitted or if the document is to be in writing, it is sufficient to send an electronic record; if a publicly certified copy or a notarized document is to be submitted, a document with a simple electronic certificate ( Section 39a BeurkG) must be submitted ( Section 12 (2) HGB). The use of a qualified electronic signature ( § 39a sentence 2 and 3 BeurkG) required for an effective electronic filing only replaces the signature of the notary.

In Section 29 (1) GBO, it is required that entries in the land register are only to be made on the basis of officially certified documents. The proof of the registration requirements in a documentary form prescribed in § 29 GBO is intended to ensure that the content of the land register corresponds to the material legal situation. For this reason, the declarations and facts required for registration in terms of substantive law should be proven to the land registry by public or publicly certified documents. For simple mortgage - and land charges (without declaration of submission), assignments, pledges layoffs, cancellation permits or abandonment of reservations so the official certification formal registration requirement. Although the written form ( § 1154 Paragraph 1 BGB) is sufficient for the validity of an assignment of land charges, public authentication is required for this declaration of assignment to be registered. However, the mortgagee has the right to sue for authentication if necessary ( Section 1154 (1) sentence 2 BGB). According to the formal land register law, the registration authorization must be certified. Subsequent changes to the text made by the undersigned maintain the form of Section 29 GBO, because the certification does not refer to the text content. In the case of official registration applications (e.g. foreclosure notice ), the signed document with an official seal is sufficient ( Section 29 (3) GBO). The only exception to the general legalization requirement is the real estate purchase agreement that requires notarization . While the certification requirement arises from formal (land register) law, the certification requirement for land purchase contracts is based on substantive law ( § 311b BGB).

Legal consequences

The law attaches an essential legal consequence to the requirement of the signature certification. If the required certification is lacking, the concluded contracts are void due to a lack of form , so they have no legal effect from the start. If the mere hand signal is not notarized under a contract that requires a written form, the underlying contract is also void due to a lack of form ( § 125 , § 126 BGB). If the required certification is missing for entries in the land register, entries may not be made ex officio (reverse conclusion from Section 29 (1) GBO). The purpose pursued with the registration of bringing about a real change in the law will then not be achieved due to a lack of registrability. A cure , as is sometimes the case with deficiencies in written form and authentication , is not provided for missing certifications.

Others

Lawyers can certify copies of documents to be served ( Section 169 (2) sentence 2 ZPO), whereby service is the disclosure of a document to a person in the form specified in Sections 166 ff. ZPO ( Section 166 (1) ZPO). Such documents are, for example, letters of claim which are to be formally served on the defendant in copy form ( Section 253 (1), (5) ZPO). With his certification, the lawyer attests that the copy to be sent to the opponent matches the original. If only a simple copy is submitted, for example if the plaintiff is not represented by a lawyer , the court will carry out the certification ( Section 169 (2) ZPO). An official or public certification is not included in the legal certification, especially since a lawyer as such is not a government agency.

In everyday linguistic usage, the completeness and correctness note of a translation by the document translator , notary or consul is referred to as certification ( certified translation ). The certification mark under the document represents a simple certificate. The certification of documents in international legal transactions is also called legalization .

Austria

See also

Individual evidence

  1. ↑ BayObLGZ 75, 227; Higher Regional Court Düsseldorf Middle Rhine Chamber of Notaries 1997, 436.
  2. ↑ § 13 Hessian Local Court Act
  3. ↑ § 13 OGerG - Certifications of signatures and copies . Wolters Kluwer Germany GmbH. Retrieved January 24, 2019.
  4. ↑ BGH, judgment of April 7, 2011 , Az. V ZB 207/10, full text - for power of attorney.
  5. ↑ Deutsches Notarinstitut, Report 13/2000 from July 2000 , p. 109 ff. ( Memento from August 26, 2004 in the Internet Archive )
  6. ↑ BayObLG RPfleger 1983, 354
  7. ↑ Axel Freiherr von Campenhausen / Joachim E. Christoph: Official certification of the publicly incorporated churches in secular law , in: DVBl. 1987, pp. 984 to 989.
  8. ↑ BT-Drs. 15/4067 of October 28, 2004, p. 35
  9. ↑ Strictly speaking, it is a target specification
  10. ↑ Knothe, in: Bauer / von Oefele, Land Register Regulation , § 29 Rn. 1; Motifs for the draft of a land register regulation, official edition 1889, p. 72.
  11. ↑ BGH, judgment of December 22, 2015 , Az. VI ZR 79/15, Rn. 13, full text.

literature

  • Marie-Luise Heckmann: Rites of legal authentication in the private documents of the Cluny monastery . In: Studies and communications on the history of the Benedictine order and its branches 117, 2006, ISSN  0303-4224 , pp. 61–80.

Web links

Wiktionary: Certification  - explanations of meanings, word origins, synonyms, translations