The notarial deed (deed of enforcement), a document authorizing compulsory execution, has been allowed exclusively for the purpose of enforcing payment of certain fixed amount of money or securities. Therefore, in cases where delivery has been sought of real property such as a building or land, settlement prior to litigation has been widely used in lieu of notarization. However, a bill was recently passed by the National Assembly to amend the Notary Public Act (“Act”) in order to widen the scope of application of the notarial deed so that it may be used in enforcing the delivery of specific real properties or chattels prescribed under the Act. The said amendment will go into effect as of November 29, 2013.
Under the amended Act, a notarial deed may be executed for the purpose of enforcing the delivery of a building, land or certain specified chattel, and the compulsory execution can be carried out without a court judgment. However, in order to protect the rights of tenants, a notarial deed for the repossession of a building leased to a tenant may be executed no earlier than six (6) months prior to the repossession of the building (subject to the expiration or termination of the lease term), and such notarial deed must ensure that the landlord will return the security deposit to the tenant in exchange for the building.
The pertinent part of the amended Act is as follows:
Article 56-3 (Notarization, etc. of Legal Acts taken with respect to the Delivery, etc. of Building, Land and Certain Specified Chattel)
- A notary public may prepare a notarial deed stating intent to consent to the compulsory execution of the delivery or return of a building, land or certain specified chattel as prescribed by Presidential Decree; provided, however, that a notarial deed to enforce the delivery or return of a building on lease may be executed no earlier than six (6) months prior to the delivery or return of such building upon the expiration of the lease agreement between the landlord and the tenant, and shall contain an agreement by the landlord on the compulsory execution of the pecuniary obligation it owes to the tenant.
- In requesting the preparation of a notarial deed under paragraph (1) above, a party may not act on behalf of another party, nor may the same attorney represent both parties.
- Notwithstanding Article 56 of the Civil Enforcement Act, a notarial deed under paragraph (1) above shall be deemed to be a title of execution for compulsory execution.
- An execution clause to a deed, deemed to be a title of execution under paragraph (3) above, shall be granted by a notary public upon the approval of a judge of a single-judge panel of a district court with competent jurisdiction over the geographic area where such notary public’s office is located. In such case, if necessary, the judge may question a party concerned or the attorney of such party in determining whether to grant approval.