签字人无法在公证员面前亲自签署文件的情况下，可以委托他人代表自己签字，这个受托人称之为见证人（subscribing witness）（民事诉讼法第1935条）
见证人代理公证不能与以下文书同时使用：任何委托书、退出债券契据、赠予契据（除因丧失抵押品赎回权的法令或根据《民法典》第2924条规定的非司法丧失抵押品赎回权而产生的受托人的契据或转手契据外）、抵押信托契据、担保协议、任何影响房产的文书、或任何需要签字人在公证簿中打指纹的文书。（政府法规第27287条和民法第1195(b)(1)和(2)条）
对见证人代理公证的要求如下：
- 见证人必须证明（宣誓）签字人为其文书涉及的本人，并且见证人和签字人相互认识（民法第1197条）；和
- 见证人必须经宣誓后陈述自己亲眼所见签字人在文书上签字，或在签字人面前由签字人亲口告之见证人其亲自签署了该文书（民法第1935条和民法第1197条）；和
- 见证人必须经宣誓后陈述见证人受签字人所托在文书上以证人名义签字并确实签字（民事诉讼法第1935条和民法第1197条）；和
- 公证员必须检查见证人的有效合法身份证件，见证人需要按单个可信证人流程公证，即可信证人需要和公证员相互认识。可信证人还需要向公证人出示符合民法第1185(b)(3)和(4)条规定的有效合法身份证件（民法第1196条）；和
- 见证人必须在公证簿中签字。可信证人需要在公证簿中签字或公证员必须在公证簿中记录身份证件的种类，签发机构，序列号和签发或过期日期（政府法规8206(a)(2)(D)和(D)条）
注意：见证人的需要由一位可信证人通过宣誓的方式确认，且可信证人需要是同时认识公证员和见证人。另外，可信证人还需要向公证人出示符合民法第1185(b)(3)和(4)条规定的有效合法身份证件（民法第1196条）。
见证人代理公证程序使用频率非常低，因此，我们（靠谱公证处）就不再翻译以下内容了，如果感兴趣，可以自行阅读公证员手册中该条文下方所示范例。
Proof of Execution by a Subscribing Witness
If a person, called the principal, has signed a document but does not personally appear before a notary public, another person can appear on the principal’s behalf to prove the principal signed (or “executed”) the document. That person is called a subscribing witness. (Code of Civil Procedure section 1935)
A proof of execution by a subscribing witness cannot be used in conjunction with any power of attorney, quitclaim deed, grant deed (other than a trustee’s deed resulting from a decree of foreclosure, or a nonjudicial foreclosure pursuant to Civil Code section 2924, or to a deed of reconveyance), mortgage, deed of trust, security agreement, any instrument affecting real property, or any instrument requiring a notary public to obtain a thumbprint from the party signing the document in the notary public’s journal. (Government Code section 27287 and Civil Code section 1195(b)(1) and (2))
The requirements for proof of execution by a subscribing witness are as follows:
- The subscribing witness must prove (say under oath) that the person who signed the document as a party, the principal, is the person described in the document, and the subscribing witness personally knows the principal (Civil Code section 1197); and
- The subscribing witness must say, under oath, that the subscribing witness saw the principal sign the document or in the presence of the principal heard the principal acknowledge that the principal signed the document (Code of Civil Procedure section 1935 and Civil Code section 1197); and
- The subscribing witness must say, under oath, that the subscribing witness was requested by the principal to sign the document as a witness and that the subscribing witness did so (Code of Civil Procedure section 1935 and Civil Code section 1197); and
- The notary public must establish the identity of the subscribing witness by the oath of a credible witness whom the notary public personally knows and who personally knows the subscribing witness. The credible witness must also present to the notary public any identification document satisfying the requirements for satisfactory evidence as described in Civil Code section 1185(b)(3) or (4) (Civil Code section 1196); and
- The subscribing witness must sign the notary public’s official journal. The credible witness must sign the notary public’s official journal or the notary public must record in the notary public’s official journal the type of identification document presented, the governmental agency issuing the document, the serial number of the document, and the date of issue or expiration of the document. (Government Code section 8206(a)(2)(C) and (D))
Note: The identity of the subscribing witness must be established by the oath of a credible witness who personally knows the subscribing witness and who is known personally by the notary public. In addition, the credible witness must present an identification document satisfying the requirements of Civil Code section 1185(b)(3) or (4).
Because proof of execution by a subscribing witness is not commonly used, the following scenario is provided as an example of how proof by a subscribing witness may be used. The principal, Paul, wants to have his signature on a document notarized. Paul is in the hospital and cannot appear before a notary public. So Paul asks a longtime friend, Sue, to visit the hospital and act as a subscribing witness. When Sue comes to the hospital, Sue must watch Paul sign the document. If Paul has signed the document prior to Sue’s arrival, Paul must say (acknowledge) to Sue that Paul signed the document. Then Paul should ask Sue to sign the document as a subscribing witness, and Sue must do so.
Next, Sue must take the document to a notary public. Sue chooses Nancy Notary as the notary public. Sue must bring a credible witness with her to see Nancy Notary. Sue chooses Carl, a longtime friend, as a credible witness because Carl has worked with Nancy Notary for several years. Therefore, Carl can act as Sue’s credible witness.
Sue and Carl appear together before Nancy. Nancy determines Nancy personally knows Carl and also examines Carl’s California driver’s license to establish Carl’s identity. Then Nancy puts Carl under oath. Under oath or affirmation, Carl swears or affirms that Carl personally knows Sue, that Sue is the person who signed the document as a subscribing witness, and Carl does not have a financial interest in the document signed by Paul and subscribed by Sue, and is not named in the document signed by Paul and subscribed by Sue. Then Nancy puts Sue under oath. Under oath or affirmation, Sue swears or affirms Sue personally knows Paul, that Paul is the person described as a party in the document, that Sue watched Paul sign the document or heard Paul acknowledge that Paul signed the document, that Paul requested Sue sign the document as subscribing witness and that Sue did so.
Sue signs Nancy’s notary public journal as a subscribing witness. Carl must sign Nancy’s notary public journal as a credible witness, or Nancy must record in the notary public journal that Carl presented a California Department of Motor Vehicles driver’s license, the license number, and the date the license expires.
Nancy completes Nancy’s notary public journal entry. Nancy then completes a proof of execution certificate and attaches the proof of execution certificate to the document. Sue takes the notarized document back to Paul.
A certificate for proof of execution by a subscribing witness shall be in the following form. (Civil Code section 1195)
Note: It is not acceptable to affix a notary public seal and signature to a document without
the notarial wording.
