China attestation services are closely intertwined with various aspects of life whether regarding personal or business matters. This article will discuss some key examples of the practical applications of China attestation services.
On A Personal Level
1. Hong Kong and Mainland Chinese residents seeking to register their marriage in Mainland China (the “PRC”)
Hong Kong residents intending to register their marriage in the PRC must first prepare and apply for the necessary documents on their marital status (e.g., single, divorced or widowed) in Hong Kong. A Declaration re-Application for Marriage (申請結婚聲明書) certified by a China-appointed Attesting Officer shall be submitted to the relevant PRC marriage registration authorities through China Legal Service (H.K.) Ltd. Only after these steps have been completed can the parties involved proceed to the local authorities in the PRC to fulfill the subsequent required procedures.
2. Hong Kong residents intending to purchase/sell properties in the PRC
Hong Kong residents who are unable to handle the necessary procedures in the PRC personally and intend to authorise another person to act on their behalf must complete a power of attorney for this purpose. The power of attorney is required to be attested by a China-appointed Attesting Officer before it is recognised for use in the PRC.
PRC authorities generally require individuals to provide documentation proving their marital status in relation to the captioned matter. It is customary for the marriage certificate of the parties involved to be attested in the aforementioned circumstance. However, those who were married abroad should take note that the attestation or authentication of their marriage certificate must be administered by the Chinese Consulate situated within the jurisdiction where their marriage was solemnised. In these instances, a China-appointed Attesting Officer has no authority to attest such overseas documents.
3. Litigation matters/disputes concerning Hong Kong residents in the PRC
With regard to matters arising from disputes with other parties in the PRC, Hong Kong residents may have to authorize a PRC lawyer to act as their legal representative in the relevant legal actions. A power of attorney (委托書) is required to be prepared and attested by a China-appointed Attesting Officer for it to be recognized for use by the relevant authorities in the PRC.
4. Inheritance of properties belonging to Hong Kong residents in the PRC
When a Hong Kong resident leaves behind estates in the PRC (such as real properties or balance of bank accounts) upon his/her death, his/her beneficiaries concerned are required to indicate their wishes by signing a Declaration of Acceptance or Relinquishment of Inheritance (繼承/放棄繼承遺產聲明書), which is required to be attested by a China-appointed Attesting Officer for it to be recognized for use in the PRC.
We often assist clients in preparing attestation documents for inheritance purposes in our day-to-day operations. However, clients may encounter challenges in gathering the requisite proof of relationship documents. For example, vital documents, such as birth certificates or marriage certificates, may have been misplaced and lost over time. In these circumstances, clients may have to take tremendous efforts (sometimes over a year) to try and locate the current responsible authorities to apply for the re-issuance of the relevant documentary proof.
[Note: Failure to provide the requisite proof of relationship documents may result in the inability to process the aforementioned Declaration of Acceptance or Relinquishment of Inheritance (繼承/放棄繼承遺產聲明書).]
5. Proof of identity required for Hong Kong identity cards (“HKIDs”) holders who are former Mainland Chinese residents
When updating their personal registration information in the PRC, former Mainland Chinese residents currently holding HKIDs are required to provide proof of their previous Chinese residency status (i.e., demonstrating that their former Chinese identification document and current Hong Kong identification document belong to the same individual). This is necessary, for example, when properties were previously purchased by an individual using his Chinese residency identity card and that individual is now required to update the relevant records to reflect his possession of an HKID and to register his HKID number.
On A Business Level
6. Application for a new or renewal of the Hong Kong Service Supplier Certificate (CEPA) by Hong Kong companies
Relevant Hong Kong companies are required to follow all applicable guidelines and have designated professionals (including China-appointed Attesting Officers) handle the specified attestation documents. These attestation documents, along with other relevant documents, are required to be submitted to the Hong Kong Trade and Industry Department for review.
For Hong Kong companies applying for a new Hong Kong Service Supplier Certificate (香港服務提供者證明書), the documents required for submission to the Hong Kong Trade and Industry Department and authentication by designated professionals (including China-appointed Attestation Officers) are multifarious. These include but are not limited to audited financial statements spanning a period of 3 to 5 years, income tax returns, tax assessment and payment notices, employee payroll and retirement fund tax returns, and any supplementary specified documents tailored to specific service industries, where applicable. As a result, clients often need to allocate substantial time to gather all the necessary documents and information before the same could be produced for attestation.
7. A Hong Kong company intending to (1) establish branch or representative offices in the PRC; (2) acquire or transfer shareholding in a PRC company; (3) commence litigation proceedings in the PRC; and/or (4) being the shareholder of a PRC company, change its authorised representative etc.
Typically, a Hong Kong company is required to provide evidence for its decisions on the relevant matters and that a certain named individual is authorized to act on behalf of the company, with full authority, in the relevant matters. A China-appointed Attesting Officer should also be engaged to properly process the requisite attested documents, such as attested board resolutions.
Regarding the validity of written board resolutions, we often receive enquiries as to whether electronic signatures or signing on separate copies of the written resolutions by directors located in different jurisdictions are acceptable. The validity of such practice would depend on the varying terms of different company’s articles of association. Accordingly, our firm would only be in the position to advise clients upon reviewing the same.
Furthermore, according to the certification requirements, at least one serving director or company secretary of the Hong Kong company is normally required to sign a confirmation in the presence of a China-appointed Attesting Officer in Hong Kong, if attestation of its board resolutions is required. This confirmation verifies the authenticity of the board resolutions and other related matters. While this arrangement presents certain challenges for companies where the directors are not based in Hong Kong or the company secretary is a legal entity rather than a natural person (i.e., a corporate entity), the Hong Kong company in question is, nevertheless, required to adhere to the aforementioned arrangement.
[Note: According to the “One Matter, One Certificate” (一事一證) policy set forth by the Association of China-appointed Attesting Officers Limited, attested documents for different matters are required to be issued separately and independently.]
8. Where annual inspection is required to be conducted on a PRC company established by the Hong Kong Company
The certification authorities in the PRC generally require Hong Kong companies to submit proof of their legal and ongoing status. The specific attested documents needed will, however, differ from case to case depending on the requirements of the applicable PRC certification authority.
It is, therefore, difficult to advise on the matter generally, given the varying submission requirements imposed by different PRC authorities. Clients required to submit attested documents should first ascertain from the PRC authorities the specific requirements, after which our firm may then provide further advice tailored to the circumstances accordingly.
For the avoidance of doubt, all attestation documents prepared by a China appointed Attesting Officer must be submitted to China Legal Service (H.K.) Ltd for approval and stamping and for some specific matters, the stamped attestation documents are required to be transferred by China Legal Service (H.K.) Ltd directly to the relevant authorities in PRC.
Kindly note that as a Hong Kong law firm, we are not qualified to advise/practise PRC law. As such, PRC legal advice may have to be sought when our firm handles attested documents involving PRC legal issues. If necessary, clients may also seek independent legal advice directly from PRC lawyers for further information.
