Authentication Powers of Notarial Deed Drafted Outside the Notary’s Jurisdiction

 In Korporasi

“A Notary is prohibited to draft a Notarial Deed outside his/her jurisdiction.”

One of our clients had asked the following question:

“My company, domiciled in South Jakarta, will hold a General Meeting of Shareholders (GMS), requires a notary to attend the GMS to make minutes of the meeting. Is it possible for our notary partner, having jurisdiction in Tangerang, to attend the GMS?”

We declared that it is not possible. If the notary is required to attend a GMS, then it is necessary to find another notary who has the jurisdiction in Jakarta.

Why?

This issue is related to the prohibition of a notary to run his/her position outside his/her jurisdiction [Article 17 of Law Number 2 of 2014 on Changes to the Law Number 30 of 2004 on Position of Notary (Law on Position of Notary)]. If it is violated, the notarial deed will only have authentication power as a private/under hand deed.

As for the definition of a jurisdiction of notary, it covers all cities within the province of his/her jurisdiction. The notary has their office in a district or city.

Hence, if a notary is appointed in District of Tangerang as his/her office, then he/she shall only run his/her position thorough the Province of Banten. Likewise, if a notary having his/her office in South Jakarta, he/she shall only run his/her position thorough the Province of DKI Jakarta.

Regarding to the case mentioned above, the notary having his/her jurisdiction in Tangerang is prohibited to attend a GMS of the company domiciled in South Jakarta in his/her position as a notary. Otherwise, he/she will be deemed to run his/her position as a notary outside the jurisdiction.

Nevertheless, the company can organize the GMS without the presence of a notary, and make minutes of the meeting under hands. The representative of the company will get the minute of the meeting notarized by the company’s notary partner.

Basically, a notarial deed has the perfect power of authentication, unless proved otherwise. That means the burden of proof is on the party who brings a claim in dispute on the validity of the notarial deed, including whether the deed has been drafted by the competent notary in accordance with the Law.

Thus, the notary deed may be used unless there is a court judgment annulling the deed or declaring that the deed is fraud.

In addition to the authentication power to the notarial deed shall cease to exist, the notary who drafted a deed outside his/her jurisdiction is subject to sanctions as regulated in Article 17 paragraph (2) of Law on Position of Notary:

  1. written warning;
  2. layoffs;
  3. honorable discharge; or
  4. dishonorable discharge.

BP Lawyers can assist you

We can assist you in solving your legal problems, both civil and/or criminal cases. You may contact us via e-mail bpl@smartlegal.id or +62821-1234-1235

 

Author:

Fairus Harris, S.H., M.Kn.

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