Elements of evidence in civil jurisdiction and notary proceedings

Abstract

This article covers research in the comparative aspect of the process of procuring evidence in civil proceedings and notarial proceedings, specific features of the elements of evidence in the notarial process, the peculiarities of the rules for determining the factual material to be established when a specific notarial act is performed, and the submission of evidence to support them. The essence of the proceduralists’ scientific discussion regarding the definition of the concept of evidence, its elements and subjects, as well as the obligations of evidence are covered. On the basis of the analysis of the positions of the authors expressed in the science of civil procedural law, which substantiate the opposite approaches to the mentioned issues, it is determined that the basis of this scientific discussion is the disagreement of views on the court as a subject of evidence. It is recognized that filling the terms “evidence” and “proving” with different meanings is not convincing, is not based on current procedural legislation and does not meet the interests of law enforcement practice. The article proves that the exclusion of the court from the subjects of evidence (even in relation to such an element as the collection of said evidence) contradicts the rules of evidence provision established in the current civil procedural legislation. It is concluded that such elements of evidence as indication of facts, determination of evidence, collection of evidence, research of evidence, evaluation of evidence are characteristic of civil proceedings. At the same time, it is advisable to determine the composition of subjects not for the entire procuring evidence process as a whole, but separately for each of the specified elements. For example, the court is not the subject of presenting evidence, but is the subject of research and evaluation of evidence. Evidence in a notarial process is considered as a procedural activity of notarial bodies and interested subjects of notarial proceedings, aimed at establishing legal facts necessary for the issuance of a legal and substantiated notarial act. The article substantiates that the establishment of the presence or absence of certain legal facts, with which the possibility of applying the relevant norm is connected, is carried out only within the scope of the procuring evidence process, according to special rules that provide for the rights and obligations of the subjects of notarial proceedings regarding submission, research and evaluation evidence, and have significant differences from similar rules in civil proceedings due to the undisputed nature of notarial activity.