by José Gonçalves Marques

Lawyer & Professor of the Law Department of the Macao University

The registration and notarial offices are organized in Macao under a perspective of public administration of private interests.

Following the Portuguese tradition in the administration of law, these offices, as the auxiliary offices for the courts of justice, depend on the government department that handles the affairs of justice.

Being based on this organic model, the thought is of that the activity of the registrtion and notarial offices shall also preventively contribute to the administration of justice: the support given to the private persons, by functionaries with legal education and specialized in this matter, in the realization of relatively important legal acts relating to the persons or to their businesses, may avoid or, at least, diminish conflicts that, subsequently, can only be resolved by courts of justice, with disbursement, delays, and uncertainties.

Though being distinctive in their functions, the registration and notarial offices have sufficient affinities to justify the existence of a common regulation in the matter of organization and personal status.

With the publication of the Decree-law No.105/84/M, of September 8, 1984, those offices were the first ones in the field of justice to be organized by legislation promulgated in Macao.

Their organization and the personal status of their funcionaries are stipulated in the Decree-Law No.54/97/M, of November 28.

In addition to that organic legislation, the codes and regulations about the legal acts practised in different registration and notarial offices are rather important.

Let us sum up the functions of each one of those offices, making reference to the respective codes or regulations.

The Registration Office of Marriages and Deaths and the Registration Office of Births are responsible for the civil registration. It is easy to understand its powers and functions of each one of those offices from its own name. The offices of civil registration are directed by legal experts with specialized technique.

The discipline of the acts of civil registration is regulated by the Code of Civil Registration of Macao. This code was approved by the Decree-Law No. 14/87/M, of March 16, 1987. This code was one of the firstly localized laws, being elaborated with highly techical rigidity by legal experts who were engaged in a profound reflexion of the complicated demographical reality of Macao. Ever since February 1^st, 1984, it has become obligatory to register the facts inumerated in the 1^st article of the Code of Civil Registration. The registers of births, marriages and deaths are outstanding because of their frequence and importance. The registration of the facts as filliation is also important, though it is less frequent. When those facts are not established in the registration of birth, adoption is also registered, as are the antenuptial conventions and the regulation of the exercise of paternal power.

The facts subjected to obligatory registration can only be proved in the courts and in the presence of governmental departments, by documents issued by the respective registration offices.

The registers of different facts link to each other by marginal annotations so as to give a systematic view of the civil status of the human person.

The Predial (Land) Registration Office is responsible for the registers of landed properties and has jurisdiction in the city of Macao and in the islands of Taipa and Coloane. This Office is divided into 3 sections, each one of which is directed by a director of the Predial Registration Office, that is also a legal expert with specialized technique. One of them engages himself (herself) to handle the administrative affairs which are common to the 3 sections, undertaking the functions of director of the whole Registration Office.

The activity of predial registration and its effects are regulated by the Code of Predial Registration. A new Code of Predial Registration is now being elaborated in order to accompany the preparation of the new Civil Code of Macao. The legal facts resulting from the most important changes in the rights about the immovables -- landed properties, buildings and autonomous units -- are subject to registration, in particular, the right of property and other real rights such as the usufruct, servitude, mortgage, and so on. Among the most frequently registered legal facts, there are purchase and sale businesses, mortage agreement, donation, and so on, and facts as succession for death, usucapion, and accession. Judicial actions in which rights about immovables are discussed, shall also be registered.

The predial registration is facultative, but one who does not carry out the predial registration may suffer the negative effects -- loss of rights -- resulting from the protection that the law gives to the person who registers in the first place, the concurrent rights over the same immovable.

The function of the predial registration consists in empowering any and all concerned persons to be informed of the legal situation of the immovables, so as to constitute, in a most secure way, an orientation of the transactions done in the immovable market.

But the predial registration has more profound effects than that of the simple information for the market’s agents.

Thus, the predial registration can automatically solve conflits of interests, such as in the following cases: (a) When the owner of an immovable sells it twice or even more times, to different buyers, or (b) In a case of selling an immovable to a person and this person mortgages it in favour of other person, without consent of the owner. In these cases, the law gives protection and priority to the concerned person -- buyer or hypothecary creditor – who registers in the first place, even that the business in favour of that concerned person is not the first one with whom the owner of the immovable makes the transaction.

If, in this way, the law acknowledges the right of second buyer, or of the hypothecary creditor who has formalized the register in the first place, then the predial registration gives effects to a business that was not valid, because the one who sold -- no longer has the right to sell or mortgage again. This is a concession of law so that there is security in the transactions of a market in which in most of the cases the persons do not know each other.

But that is exceptional, because according to the rule, the predial register does not give validity to the null or annulable businesses. Consequently the register of those businesses may be cancelled if the court of justice verifies that those businesses are not valid. For this reason, it is said that the register in force in Macao is, as a rule, merely declarative.

There is another situation in which the predial registration has special effects in the constitution of mortgage. A mortgage agreement or a similar deed concluded and formalized in the presence of a notary is not enough to -- have any effects. The mortage only begins to produce its effects from the moment at which -- it is registered. The register is, thus, an element of the formation of the mortage and, in this case, the registration is exceptionally constitutive.

But it does not happen, for instance, in businesses such as sale, donation and so on, it has the effect of transmitting the property from the moment of the conclusion of the valid agreement, that is to say, it produces effect as soon as the respective deeds are signed in the presence of the notary.

The predial register is public, because anybody may obtain oral or written information about the existing registers and may ask for certificates or photocopies of those registers.

The Commercial and Automobile Registration Office is in charge of the registers of these kinds. This office also has jurisdiction over all the territory of Macao, under the guidance of a director. Though it handles different kinds of registers, according to respective regulations, for economizing organization, the registration is conducted in a regime of annexation.

1. The commercial registration is to register the legal facts enumerated in the respective legislation relating to joint-stock companies and to individual entrepreneurs.

The registers of establishment of trading companies, of changes introduced in an agreement on a joint-stock company and of businesses of transmission of shares of the respective capital are of particular importance.

The regulation of commercial registration is now at the stage of being elaborated again in ligation with the preparation of the new Commercial Code of Macao.

The legal facts relating to the rights about the aircrafts, namely about the ownership, the usufruct, the mortgage, the reserve of ownership, the lease, the rent, and so on, are included in this register.

Besides the organization of the registration and notarial offices, the Macao International Registration Centre of Ships was created in the meantime by the Decree-Law No.64/88/M of July 18, 1988. It is an autonomous organ of the Administration, with competence for the registration of all acts and contracts relating to ships.

(4) NOTARIAL FUNCTION

Until 1991, the notarial function in Macao was only exercised by public notaries who were governmental functionaries and might for their lifetime exercise this profession, but being impeded from undertaking any other activities, particularly advocacy.

In 1991, in an unique experience in the latin notarial system, the so called "private notaries" were allowed to exercise the notarial function in Macao. They are lawyers, who, after submitting to a course of preparation, are granted a licence to exercise notarial functions in their own notarial offices.

Thus, presently there two types of notaries:

At present, there are three public notarial offices. The public notaries are governmental functionaries, being impeded from exercising advocacy, with competence to practise all kinds of notarial acts; and

They may only exercise notarial functions if they also exercise advocacy. They may practise in their offices of advocacy almost all kind of notarial acts without important exceptions in quantitative terms.

Notarial function is one of the most important juristic functions assured by the public administration in the legal systems of continental type, as that of Macao.

As a rule, those systems follow the latin notarial model. Besides other caracteristics, those documents elaborated by notaries shall have equivalent probative force with the documents of public authorities.

Those documents are considered authentic ones if they are elaborated by a notary in the ambit of his (her) competence and jurisdiction.

The Notarial Code that regulates the activity of notaries, stipulates various kinds of authentic notarial documents: public deeds, authentic testaments, diverse public documents, certificates, attestations, and acknowledgements. Though the Civil Code defines the principle of liberty of form for juristic acts, the Notarial Code makes an ample enumeration of acts, contracts, and other affairs which should be reported in the public deeds so that they may have validity. This includes all the businesses about immovables, the agreements on setting up companies, their changes and transmissions of participations to their capital (with the exception of those companies limited by incorporated shares), cession or transfer of commercial establishments, and so on.

The intervention of notary in the drafting of documents is not just limited to bestow authenticity and public faith on them. When a notary interprets the will of the deed-makers and receives and reproduces their declarations, he/she is playing the role of a guide and adviser so that the projected businesses shall be valid and conformable to the law as well as to realize the aims intended by the parties.

This is one of the most qualified and valuable functions of notary. Such function has to be exercised in conditions that shall guarantee absolute impartiality and equidistance in relation to all parties.