Pravna priroda javnog beležništva

Abstract

The legal nature of public notariat has been a long time subject to bitter controversies in legal theory, legislation and practice. The crucial question is whether public notariat is exclusively or at least predominantly a specific public service, or could it be integrated within the framework of free professions. Though legal regulation differs from country to country each directing notariat more either towards public service or free profession, its essential features remain common, its legal nature in the first place. Arguments supporting either legal public or legal private nature of notary public are many and different. Still, accusations as to dual legal nature of public notariat are unacceptable, for all its richness, as well as its primary and basic originality stem from the very juncture of a public service and a free profession. The most convincing argument in support of the mixed legal nature of this office lies in an unbreakable juncture between its obligation of drawing up legal documents and its obligation of counselling the client. The latter endows an agreement with an internal security, while drawing up of a public document - as a next step in the notary public practice - brings about the external one. The first justifies the second, and both serve the same purpose - preventing future litigations. Therefore the question which of this profession aspect prevails - public service or free profession - is a wrong one. Thus, the most rational is to claim that the two aspects of notary public office are so essentially inter-connected that any judgement as to which of them prevails becomes impossible.