3-4/2005 UINL - Notarius International

200 J. A. Márquez González, National Report Mexico Notarius International 3-4/2005
National Report Mexico
Contents
page
1. Notarial Law 200
2. Civil Law 203
3. Family Law 204
4. Law of Succession 207
5. Company Law 211
6. Private International Law 213
7. Tax Law 214
This is a report on the legal situation at 1 June 2005.
1. Notarial Law
1.1. History
Although a certain type of public officials, known as
tlacuilos, who were responsible for recording historical
facts or the most significant events, existed in pre-Hispanic
times, the institution of notary was only really introduced
to the territory now known as Mexico with the
discovery of America and the subsequent conquest of the
native peoples. Thus, we know that the conquistador,
HERNÁN CORTÉS, was accompanied by a scribe named
DIEGO DE GODOY. In fact, the first notarial record drafted
on the American continent was made in 1519 at the present-day
port of Veracruz.
In the next three hundred years, which were characterised
by the new-Hispanic colonial system, the scribes of
Virreinato fully adapted their practices to the legal structure
existing in Spain, albeit perhaps with certain special
exceptions applicable in the legislation known as the Recopilación
de Leyes de los Reinos de las Indias (Compilation
of Laws of the Kingdoms of the Indies).
With the advent of the movement for independence of
the American colonies in the second and third decades of
the 19th century, the institution of notary suffered severe
disruption due to the break, albeit gradual, with the legal
system of Spain. Nevertheless, many structures of the
profession remained valid and the everyday practice of
notaries doubtless reflected the same Spanish tradition.
Sources of law in this period are dispersed throughout a
number of laws that are still included in the Recopilación
de Indias (Compilation of the Indies), the Novísima Recopilación
(New Compilation), the Fuero Real (Royal
Charter) and the Siete Partidas (Seven Divisions).
1.2. Types of notary
How many types of notary are there in Mexico? Strictly
speaking, there is only one holder of the post per notary
public's office and that notary assumes the legal title of
notary or notary public.
The concept of escribano público still exists in Yucatán.
These officials are also appointed by the local government,
but only discharge their duties for three years.
They need not necessarily be lawyers. They have the
same capacity to attest as notaries themselves, provided
that the sum involved in the attested acts does not exceed
500 days' minimum salary, i.e. $ 22,025 pesos – equivalent
to approximately USD 2,000.
As far as the assistant is concerned, there is a large disparity
of names and duties, since the terms suplente (assistant),
asociado (associate), adscrito (adjutant), interino
(intern), supernumerario (supernumerary), auxiliar
(auxiliary), provisional (provisional), sustituto (substitute)
are all used, according to the federal state in question.
There are currently around four thousand notaries
throughout the country, serving a population of approximately
100 million.
1.3. Sources of law
The United States of Mexico consists of a total of 32
federal states, including the Federal District. These
states have independent internal systems and, therefore,
each has a Civil Code (although most of these Codes do
not differ from one another to any great extent). The same
occurs with local laws governing notaries and registries.
Thus, the institutional legislative structure for the Mexican
notarial profession consists of a complex mosaic of
32 civil codes (plus a Federal Civil Code), 32 laws governing
notaries and 32 laws governing registries although,
on the other hand, mercantile matters are governed
at a federal level and consist of one single Commercial
Code and one single Law on Companies.
This study will focus on the Civil Code of 1932 and the
Ley del Notariado (Notary Law) of 2000, both relating to
Mexico City, not forgetting the particular features that
naturally exist in other federal states. 1 Particular attention
has been paid to all of these and the applicable legal provision
is cited in each case to facilitate consultation.
1.4. Access to the profession
1.4.1. The Notarial Degree
The Notary Law creates what is known as the Notarial
Degree, since section 49 of that law establishes as follows:
Training as a notary and the dissemination of legal impartiality
and knowledge to the benefit of the legal profession
are guaranteed by this law and the Notarial Degree
provides theoretical and practical training to achieve
that. It also provides sufficient deontological and personal
training so that, through competitive examinations set
by specially qualified juries, legal professionals who are
suitable candidates to work as notaries can gain access to
the profession in optimum conditions as far as service
and equality of access are concerned, for the benefit of
the city and for the positive development of the profession
of notary.
1 Mexican laws (including Federal and State laws) can be found at
http://www.diputados.gob.mx/LeyesBiblio/gobiernos.htm
As far as its age is concerned, the current status of notarial legislation
is as follows: in Tabasco, the law dates from 1976 and in Yucatán it
dates from 1977. These are the oldest. The most recent notarial laws
are Campeche (2000), the Federal District (2000), Veracruz (2004),
Chiapas (2005) and Nayarit (2005).