The dispute about the law in the claim about the appeal of notarial deeds or the refusal to execute them

Abstract

The article is devoted to the disclosure of the concept and essence of the dispute about the right during the consideration and resolution of a civil case on challenging notarial actions or refusal to perform them. It is noted that historically, for a long time, appeals against a notarial act or refusal to perform it were considered as undisputed cases and were resolved in a civil process by way of a separate proceeding. But with the adoption of the Code of Criminal Procedure of Ukraine and its implementation, this category of civil case was classified as disputed, and therefore was already considered by the procedure of legal proceedings. The change in the order of consideration of the case led to the fact that both theoreticians and practitioners began to understand differently the nature of the «dispute about law» in this category of civil case, which had consequences not only in terms of the validity of classifying it as a case of legal proceedings, but also in the field civil jurisdiction. The author argues that when filing a lawsuit to challenge notarial actions or refusal to perform them, a civil law dispute arises, which arises not only from notarial procedural legal relations, but also from civil legal relations. Civil legal relations are the main legal relations, and notarial procedural legal relations are derivatives arising on the basis of the former and ensuring their implementation. That is why a civil law dispute arises between the person whose rights and interests are affected by the notarial act and the notary, as parties to this case, which is burdened by notarial proceedings. The peculiarity of this civil law dispute based on a claim to challenge a notarial act or refusal to perform it is that only one party claims material or non-material benefit, and the other does not. This is what distinguishes a claim for contesting notarial actions or refusal to perform them from other claims, where a dispute about civil law, which is burdened by notarial proceedings, arises between two subjects who simultaneously claim material or non-material benefit, which is behind the realization of the subject objective civil law. In connection with the encumbering of subjective civil law by notarial proceedings, when filing a lawsuit to challenge notarial actions or refusal to perform them, the purpose of civil proceedings is also complicated: in addition to the protection of subjective civil rights, freedoms and interests, judicial control of legality is carried out notarial activity.