Legal liability of the notary for violation of notarial secrecy in Ukraine

Abstract

The article is devoted to the investigation of the issue of notarial secrecy as an integral part of the notary’s activity, and consideration of the problems of the notary's liability for violation of notarial secrecy. Theoretical, legislative, and practical aspects of notarial secrecy and its enforcement are analyzed. The authors of the article noted that according to the current legislation of Ukraine, a notary must bear legal responsibility for the violation of notarial secrecy. However, the lack of a clear definition of the criteria for violation of notarial secrecy and precise regulation at the legislative level of responsibility for such violations complicates the practice of prosecuting a notary public for violation of notarial secrecy. Cancellation of the certificate of the right to engage in notarial activity refers to exceptional cases of establishing the notary's liability for breach of notarial secrecy. It is emphasized that if a person has given consent to the dissemination of information about the performance of a notarial act, then this cannot be a reason for annulment of the certificate of the right to engage in notarial activity, which is confirmed by the presence of the Supreme Court’s decision. However, in case of significant damage to the rights and interests of individuals, legal entities, or the state, it seems necessary to apply stricter immediate measures to the notary to ensure the rights of other persons and restore trust in the profession. The authors come to the conclusion that for violating the secrecy of notarial acts, the notary must bear administrative and, in some cases, criminal liability, since the existing liability does not include punishment for causing harm to other persons, including for disclosing information constituting notarial secrecy. This kind of violation can cause significant harm to other persons, in particular, violate their constitutional right to privacy and confidentiality. In addition, the norms of administrative and criminal liability should be constructively constructed and established at the legislative level, the bodies of administrative and criminal jurisdiction should be defined to ensure transparency and clarity of the procedures for the application of appropriate sanctions provided for by law, taking into account the degree of damage caused.