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Law No. 589 Of 15 December 2004 On The Legal Regime Of Electronic Notary Activity

Original Language Title:  LEGE nr. 589 din 15 decembrie 2004 privind regimul juridic al activităţii electronice notariale

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LEGE no. 589 589 of 15 December 2004 on the legal regime of notarial electronic activity
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR no. 1.227 1.227 of 20 December 2004



The Romanian Parliament adopts this law + Chapter I General provisions + Article 1 This Law establishes the legal regime of notary acts in electronic form, fulfilled by the notary public in the notary activity regulated by Law of public notaries and notarial activity no. 36/1995 , with subsequent amendments and completions, as well as the diplomatic missions and consular offices of Romania. + Article 2 (1) Notary acts in electronic form handled by the notary public must meet, under the sanction of absolute nullity, the following conditions: a) to be carried out in electronic form; b) be signed with the extended electronic signature of the notary public, based on a qualified certificate, issued by an accredited certification service provider. Certificates issued for public notaries will contain information on the notarial office, established by regulations by the regulatory and supervisory authority specialized in the field; c) meet the substantive conditions provided by law on the legal operation they record. (2) The public notary and the other institutions provided in art. 1 have the obligation to verify the fulfilment of all the conditions provided in ((1). + Article 3 Notarial acts in electronic form have the same legal regime as the notary acts fulfilled under Law no. 36/1995 , with subsequent amendments and completions. + Article 4 (1) The validity abroad of the notarial act in electronic form is established by international conventions to which Romania is a party. ((2) Documents in electronic form coming from the authorities or notations of another State may be taken into account by public notaries in the handling of a notarial act in electronic form only if foreign electronic signatures are based on a qualified certificate issued by an accredited certification service provider. + Chapter II Competence of public notaries in matters of notary acts in electronic form + Article 5 The following notary acts may be fulfilled in electronic form: a) legalization of electronic copies on original documents; b) the giving of the definite date by temporal marking of the documents that meet the conditions provided in art. 2 2 para. ((1) and the attestation of the place where they ended; c) receipt and preservation in the electronic archive of the documents that meet the conditions provided in art. 2 2 para. ((1); d) legalization of translations in electronic form; e) release of duplicates; f) other operations provided by law. + Article 6 (1) The public notary authorized to carry out notarial acts in electronic form has general competence, under the conditions of this law. (2) The competence of the other institutions provided for art. 1 1 shall be determined in accordance with Law no. 36/1995 , with subsequent amendments and completions, which shall apply accordingly. + Chapter III Authorization of public notaries for performing notary acts in electronic form + Article 7 (1) Notary acts in electronic form may be handled by public notaries only after obtaining an authorization from the regulatory and supervisory authority specialized in the field. (2) In order to issue the authorization provided in par. ((1), public notaries must meet the following conditions: a) dispose of financial means and material resources, technical and human resources to guarantee the security, reliability and continuity of notary services in electronic form; b) to use an approved computer system, in accordance with the rules issued by the regulatory and supervisory authority specialized in the field; c) to ensure the rapid and safe operation of the registration of notary documents in electronic form, in compliance with the structure of notary registers established by the regulation approved by the Ministry of Justice; d) ensure the possibility to determine precisely the exact date and time of the preparation of the notarial act; e) have appropriate means, according to the legal provisions and procedures described in the regulations issued by the regulatory and supervisory authority specialized in the field, to verify the identity of the applicant and the validity its extensive electronic signature; f) to use staff with expert knowledge in the field of electronic signature technology and sufficient practice with regard to the appropriate security procedures; g) to apply the appropriate administrative and management procedures and meet the recognised standards; h) to adopt security measures against counterfeiting of notary acts in electronic form and to guarantee confidentiality during the process of generating and archiving them; i) keep all information on a notarial act in electronic form during the period established in accordance with the technical rules on the activity of keeping the documents created and received by the offices of the public notaries, Chambers public notaries and the National Union of Public Notaries in Romania, according to the rules issued by the regulatory and supervisory authority specialized in the field; j) to use approved systems for archiving notary documents in electronic form; k) any other conditions established by the regulatory and supervisory authority specialized in the field. (3) The regulatory and supervisory authority specialized in the field has the obligation to notify the National Union of Public Notaries in Romania of granting each authorization, with its release to the public notary who requests it. (4) The National Union of Public Notaries of Romania is obliged to notify to the regulatory and supervisory authority specialized in the field the exclusion, suspension or termination of the suspension from the profession of public notaries. + Article 8 (1) Public Notaries are obliged to notify, in advance, to the regulatory and supervisory authority specialized in the field any modification of the approved computer system. (2) The regulatory and supervisory authority specialized in the field will rule on the approval of the amendments made, within 15 days from the registration of the notification. + Article 9 (1) In case of modification of the identification data of the public notary or notarial office, it is necessary to update the authorization issued according to art. 7. (2) The public notary has the obligation to notify to the regulatory and supervisory authority specialized in the field, within 24 hours, any change occurred in relation to the identification data. The regulatory and supervisory authority specialized in the field is required to verify the new identification data and, if they comply with the legislation in force, to update within 48 hours the authorization held by the office notarial. + Article 10 In the period necessary to update the authorization or suspension from the profession of public notary it is forbidden to carry out notarial acts in electronic form. + Article 11 (1) The regulatory and supervisory authority specialized in the field is obliged to periodically verify compliance with the conditions provided in art. 7 7 para. ((2) lit. b), d), e), g), h) and j) to supervise the application of the provisions of this law and the regulations issued by it. (2) In case of non-compliance with the conditions provided in 7 7 para. ((2) lit. b), d), e), g), h) and j), the regulatory and supervisory authority specialized in the field shall order the suspension or, where appropriate, the withdrawal of the authorization. + Article 12 The acts issued by the regulatory and supervisory authority specialized in the field in the exercise of the powers conferred by this law are administrative acts and can be appealed under the conditions provided by Law of Administrative Litigation no. 29/1990 ,, as amended. + Chapter IV Provision of services specific to notarial acts in electronic form + Article 13 (1) The provision of services specific to notarial acts in electronic form will be carried out by qualified certification service providers, accredited by the Regulatory and Supervisory Authority specialized in the field and The National Union of Public Notaries in Romania, hereinafter referred to as notary electronic service providers. (2) Notary electronic service providers perform the duties of qualified certification service providers, provided by Law no. 455/2001 on electronic signature. + Article 14 (1) Notary electronic service providers are required to communicate to the regulatory and supervisory authority specialized in the field all information relating to the security and certification procedures used, as well as any other information required by it. (2) Notary electronic service providers have the obligation to communicate to the regulatory and supervisory authority specialized in the field, at least 10 days before, any intention to modify the security and certification procedures, with specifying the date and time at which the amendment takes effect, as well as the obligation to confirm within 24 hours the modification made. (3) In cases of urgency, where the security of certification services is affected, the supplier may make changes to the security and certification procedures, and shall communicate, within 24 hours, to the regulatory authority and specialized supervision in the field of changes made and justification of the decision taken + Chapter V Notarial acts in electronic form + Article 15 (1) Notary acts in electronic form shall be fulfilled in compliance with the substantive rules on the procedure of notarial acts regulated by Law no. 36/1995 , with subsequent amendments and completions. (2) It is forbidden to use the pseudonym in performing notary acts in electronic form. + Article 16 (1) Applications for the preparation of an electronic notarial act may be submitted to the public notary, in electronic form, in this case being signed with the extended electronic signature of the applicant. ((. Where the application is made by the representative, the act on which the parties are represented shall be annexed, which may also be in electronic form if it is signed with the extended electronic signature of the parties. + Article 17 (1) Within 24 hours of receipt of the application in electronic form, the public notary shall carry out the necessary checks on the legality of the requested notarial act, establish the identity of the parties, by checking the extended electronic signature, and will send to the applicant a response message indicating, as the case may be, stamp duties and the fee related to the act or grounds for refusal of the performance of the notarial act requested in electronic form. (2) After receiving the confirmation of payment of stamp duties and of the fee, the notary public is obliged, within 24 hours, to fulfill the notarial act requested. (3) The fee will be determined in accordance with the provisions art. 28 28 para. 2 lit. c) of Law no. 36/1995 , with subsequent amendments and completions. (4) The terms provided in par. ((1) and (2) may be reduced in exchange for an emergency fee. + Article 18 The electronic notarial conclusion by which the performance of an electronic notarial act is found will include the following elements: a) the electronic address of the notary public; b) the name of the conclusion and number c) the date and time of the electronic notarial act; d) the name and surname of the notary public; e) the place where the electronic notarial act was fulfilled; f) the extended electronic signature of the parties, if applicable; g) the extended electronic signature of the applicant, if it is a person other than the party; h) extended electronic signature of the notary public; i) the number and date of issuance of the authorization for the fulfilment of notary acts in electronic form, as well as the date of expiry + Article 19 (1) The public notary may make the legalization of electronic copies of a document in material form, which is in the archive of the notary public or is presented by the parties as original, only after the confrontation of the electronic copy with the original in the form material. (2) In the conclusion of the electronic notary by which the electronic copy is legalized, mention shall be made of the original of the document and of the conformity of the electronic copy (3) The electronic legalized copies on the documents in the public notary archive shall be issued only to the parties, their successors and their legal representatives, as well as to persons justifying a legitimate right or interest. + Article 20 The electronic notarial conclusion by which the receipt is recorded in the electronic archive will include, in addition to the elements provided in art. 18, the following entries: a) the list of electronic documents received, identified individually; b) the identification data of the depositor and the identification data of the person to whom the electronic documents must be handed over; c) storage time. + Article 21 (1) Translation in electronic form may be legalized by the notary public if it bears the extended electronic signature of an authorized translator, according to the law. (2) In the case provided in par. (1), the conclusion of legalization will include the elements provided in art. 18 lit. a)-e), h) and i) and the extended electronic signature of the authorized translator. + Article 22 In the event of the disappearance of a notarial act in electronic form will proceed to the issuance of the duplicate of that act, at the request of the parties or, as the case may be, of their successors, by consulting the electronic archive of the public notary who originally drew that act. + Article 23 (1) If a notarial act in electronic form disappears both from the parties and from the electronic archive of the notary, the reconstitution will be made by the office of the notary public who drew up the act, with the prior notification of all parties or, as the case may be, of their successors, by consulting the copy of the electronic archive of the notary. (2) Provisions of para. ((1) shall apply accordingly and where the missing notarial act has been carried out by the competent institutions referred to in art. 1. + Chapter VI Electronic notary records + Article 24 (1) The public notary is obliged to keep in the electronic archive the notary documents in the electronic form that it instrumentates, for the period established in accordance with the technical norms on the activity of keeping the documents created and received by the offices of public notaries, the Public Notaries Chambers and the National Union of Public Notaries in Romania. (2) Provisions art. 102 102 of Law no. 36/1995 , as amended and supplemented, shall apply accordingly. + Article 25 (1) The public notary shall keep up to date a general register in the electronic form of all notary acts in the electronic form it performs. (2) The form of the general register and the manner of young and performing records shall be established by the Ministry of Justice, by regulations. + Article 26 The public notary will also keep a financial-accounting record in electronic form. The way of completion and young women of these records is established by the Ministry of Public Finance and the Ministry of Justice by methodological norms, within 60 days from the entry into force of this law. + Chapter VII Register of public notaries authorised to carry out notarial acts in electronic form + Article 27 On the date of entry into force of this Law, the Register of Public Notaries authorized to carry out notarial acts in electronic form, hereinafter referred to as the register, constituted and updated by the regulatory and supervisory authority specialized in the field + Article 28 (1) Registration in the register provided for in art. 27 of the identification data and of the necessary information on the activity of public notaries performing notary acts in electronic form shall be made on the basis of individual application, submitted to the regulatory and supervisory authority specialized in the field at the latest on the start of business. (2) The mandatory content of the application provided in par. ((1) and the necessary documentation shall be established by the regulatory and supervisory authority specialized in the field. + Article 29 (1) The register shall be public and shall be updated permanently (2) The conditions of the youth of the register, the effective access to the information it contains, the information that may be provided to the applicants and the way of updating the register shall be established by the regulatory and supervisory authority specialized in Domain. + Chapter VIII Type-approval + Article 30 (1) The conformity of computer systems used by public notaries with the rules for securing the information processed or archived shall be verified by the approval agents, legal persons governed by public law or by private law, agreed by the authority regulatory and supervision specialized in the field, under the conditions established by regulations issued by it. (. The certificate of approval of the computer system shall be issued following the completion of the verification procedure. The certificate may be withdrawn if the approval agency finds that the computer system no longer meets the criteria laid down in the rules for securing the information processed or archived. (3) The conditions and procedure for the approval of the approval agencies shall be established by regulations by the regulatory and supervisory authority specialized in the field. (4) The decision of approval shall be issued by the regulatory and supervisory authority specialized in the field. + Chapter IX Contraventions and penalties + Article 31 It constitutes contravention of the public notary deed which: a) perform notary acts in electronic form without the authorization provided in art. 7 7 para. ((1); b) perform notary acts during the suspension from the profession or during the period necessary to update the authorization; c) omits to carry out the notification provided in art. 8 8 para. ((1); d) omits to carry out the notification provided in art. 9 9 para. ((2). + Article 32 The contraventions provided in art. 31 31 shall be sanctioned as follows: a) with a fine from 10,000,000 lei to 250,000,000 lei, those from lit. a) and b); b) with a fine from 5,000,000 lei to 50,000,000 lei, those from lit. c) and d). + Article 33 Finding of contraventions and application of sanctions provided in art. 31 and 32 are the competence of the control personnel of the regulatory and supervisory authority specialized in the field. + Article 34 The amount of fines provided for in this law can be updated by Government decision, depending on the evolution of the inflation index. + Article 35 Contraventions provided for in art. 31 the provisions of Government Ordinance no. 2/2001 on the legal regime of contraventions, approved with amendments and additions by Law no. 180/2002 ,, as amended. + Chapter X Transitional and final provisions + Article 36 The procedure for granting, updating and renewing the authorization will be established by the regulatory and supervisory authority specialized in the field by specific regulations, within 60 days from the date of entry into force of this law. + Article 37 Within 60 days of the entry into force of this law, the specialised regulatory and supervisory authority in the field will develop regulations relating to performance and security rules on computer systems. used by public notaries, the transmission of electronic documents and their preservation in the archives. + Article 38 ((1) The expenses incurred for investments, endowments and other utilities necessary for the conduct of notary electronic activity shall be deducted from gross revenues, for a period of 2 years from the beginning of this activity. ((2) The expenses for the modification and improvement of the information systems used in the notary electronic activity shall be deducted from the taxable income related to the fiscal year in which the investment was made. + Article 39 Public notaries authorized under art. 7 will be able to start the notary electronic activity within 90 days of the entry into force of this law. + Article 40 The provisions of this Law shall be supplemented Law no. 36/1995 ,, with subsequent amendments and completions, and of Law no. 455/2001 . This law was adopted by the Romanian Parliament, in compliance with the provisions of art. 75 75 and art. 76 76 para. (2) of the Romanian Constitution, republished. CHAMBER OF DEPUTIES PRESIDENT VALER DORNEANU SENATE PRESIDENT NICOLAE VACAROIU Bucharest, December 15, 2004. No. 589. ---------