Notarial Activities Research Articles

KWESTIA CHARAKTERU ODPOWIEDZIALNOŚCI ODSZKODOWAWCZEJ NOTARIUSZA W ZAKRESIE ODPOWIEDZIALNOŚCI CYWILNEJ ZA SZKODY WYRZĄDZONE PRZY WYKONYWANIU CZYNNOŚCI

A notary, as a person who performs activities that play a huge role in legal transactions and produce extremely significant effects, is obliged to act in accordance with the law and behave with dignity – both in private and public life. The notary is responsible for the breach of these rules. As a rule, the following types of liability are mentioned: civil, criminal, disciplinary, and tax. Based on Art. 19a of the Law on Notaries, a notary public is subject to compulsory third-party liability insurance for damages caused while performing notarial activities. There are doubts about the nature of the civil liability of a notary and its scope. This article aims to provide a clear answer on this matter.

Reforming the institute of notary institute in the modern conditions of European integration

The scientific article is devoted to the process of reforming and improving the notary institution in accordance with international standards. Consideration of ways to reform the notary as a complex problem should ensure the success of such reform and stable functioning of the system. Taking into account the needs of civil circulation, we can talk about the relevance of the topic raised in the article, its scientific and applied nature and unconditional connection with notarial practice. 
 The notary reform is primarily a benefit for people, because the implementation of the planned will save time and money of citizens and businesses, ensure the availability of notarial actions, overcome corruption in the field of justice, create reliable protection against fraud, significantly save the state budget, and finally move to the standards of the European Union. 
 Today, significant economic and political changes are taking place in Ukraine, which significantly affect the process of notary reform.
 The implementation of the reform involves three strategic steps. Firstly, the introduction of an electronic notary system. This project is designed to improve the quality of notarial actions by reducing the time to perform the action and protecting the notarial document from forgery.
 In particular, the large-scale digitization of notarial activity involves: the rejection of keeping paper books of notary activities; reducing the number of documents that a person must submit to perform a notarial act; automation of a number of processes in the activity of notaries; effective information interaction between state information resources; maintaining a notarial archive in electronic form.
 A full technical and economic analysis of E-notary has already been prepared. It is planned that the first stage of the «pilot» with the notary's electronic workplace will be launched by the end of 2020.
 The next step is the transition to a single notary. This will make it possible to consolidate the unified status of a notary in Ukraine, abandoning the system of dividing notaries into public and private ones, as was done in many European states. The transition to a single notary office will involve the gradual termination of the activities of state notary offices, and therefore will allow a significant reduction of state expenses for their maintenance, which will contribute to the saving of budget funds. A concept of measures has been developed that will guarantee the availability of basic notarial actions for socially vulnerable sections of the population. The number of actions that notaries can perform will also be significantly expanded. The notary will have the right to register marriages, divorces, provide evidence, etc.
 And the third step is self-regulation of the notary profession. An important aspect in the implementation of the transition to a unified notary is the transfer of a number of powers to the body of professional self-government of notaries, in particular: to exercise control over the organization of notary activities, record keeping, compliance with the rules of the Code of Professional Ethics of Notaries, to organize an increase in the professional level of notaries, as well as to create conditions for an even territorial distribution of workers places of notaries, so that citizens from the most remote corners of our country have access to notarial acts. Certain steps in the direction of self-regulation have already been taken. We have changed the composition of the Higher Qualification Commission of the Notary. Now, its composition includes only 3 representatives of the Ministry of Justice of Ukraine and 11 private notaries, that is, control over the decisions of the HCPC has already been transferred to the notary community. The implementation of the reform will make it possible to lay a solid foundation for the formation and development of a Latin-type notary in Ukraine, which is a world standard in the field of protection of the rights and legitimate interests of citizens.
 Reforming is a long process that depends not only on the aspirations of the Ministry of Justice and notaries, but also on the political and socio-economic situation in the country.

Особенности цифровизации нотариальной деятельности в России и США: сравнительный аспект

The article presents a comparative study of the features of digitalization of notarial activity in Russia and the USA. Reference to successful practices of digitalization of notaries abroad on the example of the USA allowed the authors to identify significant differences in the results of digitalization of notarial activity in Russia and the USA and to conceptualize these differences. Comparative aspects were the peculiarities of the forms of digital notarial activity in both states, including the terms denoting them, as well as the differences between the digital resources used by notaries in Russia and the USA. Two fundamental differences between American and Russian practices were conceptually singled out, indicating a certain decentralization of notarial activities and the notarial community: 1) notaries in the US are empowered to provide remote notarial services only after receiving a special permit issued by a state authority; 2) US notaries use numerous digital resources unlike the Russian Unified Notarial Information System (UIS), which is the only centralized system for notarial services. The authors conclude that despite the general decentralization effect of the U.S. notarial activity there is still great dynamism of service provision, actualization of the notary public principle and integration of notarial subjects in the new digital space. According to the authors, the revealed differences of digital adaptation of notarial activity in Russia and the U.S. are due to objective political and economic reasons; however, in both jurisdictions digitalization promotes unification of notarial practices.

Нотариальные действия как средство защиты прав государства

The article analyzes the problem of protecting the rights and interests of the state in the context of notarial activities. The author proceeds from the dualistic nature of the domestic notaries, but considers it as a means of legal protection and protection of not only private, but also public rights and interests. It is shown that the state can act as a subject of not only public law, but also private law relations, without changing the fundamental principles of civil circulation. Emphasis is placed on the fact that participating in private law relations, the state, nevertheless, implements public interests. The issue of notarization of civil law transactions, in which the state is a participant, is considered, proposals are made to improve the current legislation in terms of fixing the mandatory notarization of arbitration agreements with the participation of the state, a notarized mediation agreement as a basis for refusing to accept a statement of claim, as well as a special status of a notary certified transaction as “indisputable evidence” in cases of action proceedings.

Some aspects of the legal regulation of the activities of the Institute of Notaries in the conditions of martial law in Ukraine

The scientific article examines the introduction of restrictive measures in the activities of the notary in the context of the war in Ukraine as an important social and legal institution. The position on the need to ensure the balance of private interests of notaries for professional implementation and public interests in the introduction of any restrictions on the implementation of notarial activities with the priority of the interests of society and ensuring the stability of civil circulation, inviolability of property rights and avoiding risks is expressed, which may occur in the case of the untimely introduction of such restrictions in the state as a whole. The author of the article positively assesses the timeliness and essence of restrictive measures in the field of notaries, which in conditions of martial law are absolutely relevant and aimed primarily at protecting the public interests of society and every citizen of Ukraine. These restrictions do not contradict the approach to implementation of this activity, which is laid down by the legislation on notaries, and offer legal instruments for certain restrictions only for the period of martial law. Attention is paid to the fact that the by-laws of the normative-legal acts of the Cabinet of Ministers of Ukraine regarding the organization of a notary in the conditions of war, both as a whole and regarding certain of their provisions, do not contradict the provisions of the Constitution of Ukraine and the Law of Ukraine «on Notary», are constitutional, and meet the challenges of martial law of a restrictive nature. Analysis of various restrictive measures is carried out, in particular the moratorium on notarial acts at the request of citizens of the Russian Federation or legal entities, in which the owner of a substantial share or ultimate beneficiary is the citizen of the Russian Federation; changes in the state registration in the conditions of martial law; questions about the possibility of continuing their professional activities by notaries; The problems of including notaries in the list of notaries approved by the Ministry of Justice of Ukraine, which in the conditions of martial law perform notarial actions regarding valuable property. The characteristic of the conditions for the inclusion of notaries in the specified list makes it possible to assert their closed nature, the impossibility of extended interpretation and distribution on all notaries in Ukraine, in connection with which a unified approach to the formation of an established practice of legal regulation of the organization of notaries and the prevention of potential offenses in the conduct of notarial activities is introduced. It is noted that this list is constantly updated, taking into account the requests of notaries and their compliance with the conditions of inclusion in it. It is indicated that the rights and legitimate interests of notaries who are illegally excluded from the list of notaries who in the conditions of martial law, perform notarial actions regarding valuable property can be protected by means of existing methods and forms of protection, corresponding to the essence of the violated right in accordance with the Constitution and laws of Ukraine.

On some theoretical problems of the Modern notary in the Russian Federation: public law aspect

The paper presents an analysis of problematic aspects of the organization and activities of the notary in the Russian Federation. The authors conduct a study of the problem of legislative regulation of the notary's activity in the Russian Federation, consider the question of the legal nature and nature of the notary and notarial activity, as well as some problems of the conceptual apparatus of the legislation on the notary. In the course of the study, the authors point out the relevance of the issue of reforming the current regulation, examines the gaps in the conceptual apparatus, propose a definition of the concept of "notary legal relationship" and highlight the features that are inherent in these legal relationships. In addition, the authors argue the position on the public-legal nature of notarial legal relations, and also additionally indicate the special status of a notary and consider his powers taking into account such status. Based on the results of the study, solutions to the problems described above are proposed, and further prospects for the development of regulation of notary activity are outlined. One of the most important conclusions of the study is that disputes arising from notarial legal relations also have a public legal nature and should be considered according to the relevant procedural rules. That is, not in a lawsuit, but in the order of administrative proceedings.

PROCEDURAL MEANS OF PROTECTING THE RIGHTS OF BUSINESS ENTITIES IN THE CONTEXT OF ILLEGAL SANCTIONS

The article proposes ways to improve civil, arbitration procedural legislation and legislation on notarial activities, which will accelerate and optimize the protection of violated or contested civil rights, freedoms and legitimate interests of business entities in the face of unprecedented sanctions pressure on the Russian Federation. It is shown that at present the system of protection of civil rights and legitimate interests is undergoing significant changes related to the introduction of new conciliation procedures (for example, online dispute resolution).

APPLICATION OF ARTIFICIAL INTELLIGENCE TECHNOLOGIES IN NOTARIAL ACTIVITY: PROBLEMS AND PROSPECTS

The article analyzes the prospects for introducing modern digital technologies in the professional activities of notaries. The technology of neural networks is considered as a concrete implementation of artificial intelligence algorithms. The main problems of the neural networks’ using in the legal activities are being investigated. There are formulated such principles of using neural networks as responsibility and control in the implementation, prevention of bias in its training, transparency of algorithmization, providing data security and the copyright compliance. There are indicated the limits and risks of introducing artificial intelligence technologies in notarial activities.

EXCLUSIVE JURISDICTION OF NOTARIES IN THE JUDICIAL PRACTICE OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

Based on the public legal status of a notary and notarial activity, the article substantiates the similarity of the key provisions of the status of the judicial and notarial systems. It is proposed to use the key provisions of the procedural doctrine to characterize the rules of notarial jurisdic tion, in particular, on the example of the exclusive jurisdiction of notaries. A comment is given on the ruling of the Supreme Court of the Russian Federation, which confirmed the exclusive jurisdiction of the notary under agreements on the division of property of spouses.

FEATURES OF NOTARIAL ACTIVITY WITH INDIVIDUALS FOR WHICH THE BANKRUPTCY PROCEDURE IS INTRODUCED

This article analyzes the features of notarial activity with the individuals in respect of whom the bankruptcy procedure has been introduced. The authors highlight the stages of the process of bankruptcy, identified the legal consequences of declaring a person bankrupt and gave practical recommendations to notaries.

ABOUT IMPROVEMENT BY NOTARIES COUNTERING ILLEGAL LEGALIZATION ACTIVITIES

The article analyzes the legal structure of the key concept in the field of combating money laundering. The problems of interpretation of the term “legalization” are revealed and its inconsistency with the provisions of the anti-legalization legislation is indicated. A comprehensive analysis of the illegal phenomenon - money laundering, in comparison with the principles of notarial activity, made it possible to formulate a definition of legalization activity, which makes it possible to eliminate contradictions in the system of measures to counter illegal legalization in the performance of notarial acts.

TEMPORARY NON-PERFORMANCE AND TERMINATION OF THE POWERS OF THE PRIVATE PRACTITIONING NOTARY: FATE OF LABOR RELATIONSHIPS

From the standpoint of labor law, the position of a private notary as an employer is considered in cases of suspension of his notarial powers, during a period of temporary replacement, or in the absence for other reasons. It is noted that the temporary restriction of the rights of a notary to perform notarial acts does not affect his legal status in relations regulated by the norms of labor legislation and other branches of law. It is proposed to specify in the Fundamentals of the legislation of the Russian Federation on the notary the powers of the employer during the period of temporary suspension of notarial activities. The grounds for termination of a notary’s powers and related issues of termination of employment relations are also investigated.

Peculiarities of regulatory and legal regulation of notarial activities of consular institutions

This article discloses the specifics of the regulatory and legal regulation of the notarial activity of consular institutions. It was noted that ensuring the proper level of training and qualification of consular notaries. For this purpose, it is possible to carry out regular retraining and professional development of specialists, organize seminars and trainings. Attention is focused on the need to establish clear rules and procedures for notarial acts. Consular offices can create an internal document that contains clear instructions on how to perform different types of notarial acts. Ensuring the accessibility and convenience of the procedure for performing notarial acts. For this purpose, it is possible to consider the possibility of expanding the work schedule of consular institutions, making it possible to make an appointment for a visit, and introducing other tools to facilitate the procedure for performing notarial acts. It is necessary to establish a quality control system for the performance of notarial acts. To do this, you can create a feedback system with customers of services, conduct regular monitoring of the quality of service performance and study statistical data on the performance of notarial acts. The following steps can be proposed to expand the system of quality control of the performance of notarial acts by consular institutions of Ukraine: 1) to introduce quality standards for the performance of notarial acts, which provide for the identification of quality criteria that take into account the best European practices and legislation and, accordingly, to determine the evaluation and assessment of the performance of notarial acts, which will include a rating of customer satisfaction, analysis of feedback on the performance of services, monitoring of compliance with established standards and other parameters; 2) to develop a system of monitoring and reporting on the quality of the performance of notarial actions, which will provide for the collection, analysis and reporting of the results of the assessment of the quality of the performance of services; 3) to develop and implement a satisfaction survey system for clients who have already used the services of the consular office and conduct an analysis to improve the quality of services; 4) to introduce training courses once every 2 years for consular notaries and other employees on the quality of performance of notarial actions and compliance with standards; 5) conduct an audit of consular notarial services once a year, in order to ensure compliance with standards and best practices; 6) to establish responsibility for violation of norms defining the rules and procedure for providing consular services by consular institutions.

El notario como promotor de soluciones no adversariales en materia de divorcio: su rol de conciliador en la actividad notarial

In this essay, a regulatory reform is proposed to expand the attributions of the notary as a promoter of non-adversarial solutions in matters of divorce, every time there is a specific problem related to the notarial activity, in terms of the limitation of the attributions of the notary to resolve divorces by mutual consent and cases of termination of de facto unions, when there are dependent children. Currently, notaries covered by the voluntary jurisdiction can process the divorce by mutual consent and the termination of the de facto union. However, in the case of dependent children, a mediation act is previously required or, instead, a judicial resolution regarding custody, visits and food that may well be resolved at a notary office if the notaries have the power to reconcile. It is concluded that a regulatory reform is necessary so that the notary has the power to act as conciliator, only in the cases mentioned, in order to provide a global solution to divorce without the need to go to court or to a mediation center.

НОТАРИАЛЬНОЕ УДОСТОВЕРЕНИЕ СДЕЛОК В УСЛОВИЯХ ВОЕННОГО ПОЛОЖЕНИЯ

This article examines the peculiarities of notarial certification of transactions against the background of the introduction of martial law in new constituent entities of the Russian Federation (Donetsk, Lugansk People's Republics, Kherson and Zaporozhye regions). The absence of legal norms was revealed that allow mobilized individuals to notarize the transaction, if such a need arose after leaving for the SVO zone in Ukraine, including the territory of new constituent entities of the Russian Federation. The specifics of the application of legislation on notarial activities during the transition period have been determined. Proposals have been formulated to improve the current legislation in the field of notarial certification of transactions for the purpose of adapting to the current needs of subjects of civil circulation.

Components of the mechanism of notary activity: theoretical and legal dimension

In the author’s work, the components of the mechanism of notarial activity as a theoretical and legal phenomenon were analyzed. The relevance of the research topic and the importance of modernizing the understanding of the componentsof the mechanism of notarial activity in the modern conditions of its development were noted.The cognitive features of the subject of this article have been established. The author emphasized that the prospects for improving notarial activity are in the area of strengthening its functioning as a single integral mechanism that provides an effective algorithm for the notary to implement its functions on the basis of complexity, professionalism and efficiency. Onthe basis of the analysis of doctrinal approaches to understanding the mechanism of notarial activity, the definition of the specified concept as a type of legal mechanism of notarial activity, the content of which is an ordered system of interrelated legal means aimed at normalizing and giving legal form to social relations arising from the implementation of notarial activities, has been clarified actions related to certification of rights and facts that have legal significance, taking other actions with the aim of giving them legal credibility, as well as providing citizens and legal entities with other professional legal assistance. The components of the mechanism of notarial activity are singled out and characterized, namely regulatory andlegal support, legal facts, notarial-procedural legal relations, acts of application of law, legal means of protecting the rights and legitimate interests of participants in notarial proceedings.It is summarized that the mechanism of notarial activity is the main way of functioning of the notary institution, a set of legal means of performing its main functions defined by legislation. It is his proper scientific research that should be the basis for improving the practice of functioning of notaries in Ukraine.

APPLICATION OF THE PRESUMPTION OF GOOD FAITH IN CIVIL PROCEDURAL LAW, LEGAL PROCEEDINGS AND NOTARIES

The universality of one of the fundamental presumptions – good faith – should be explored in various fields of law. The relevance of this study is as follows: at the ideological and philosophical level – overcoming the separation of branches of law and creating an understanding of law as a whole, at the practical level – improving the legal system and clarifying the features of this presumption in regulating different groups of legal relations. Based on the presumption of good faith, any behavior is regarded as positive, so the very fact of harm is regarded (presumed) automatically as dishonest behavior. The presumption of good faith, which is enshrined as a basic principle of civil law, also manifests itself in other branches of law – civil procedural law, in criminal law and process, in notaries, which makes it possible to attribute it to the fundamental principles of law. In civil law, good faith is manifested in the freedom of contract, presumptions of the validity of the contract, the guilt of the tortfeasor, and so on. In civil proceedings, these are manifestations of the dispositive nature of civil proceedings and the prohibition of abuse of procedural rights. In criminal law and procedure, the principle of good faith is manifested through the presumption of innocence of a person. In a notary – by securing a high probability of rights and facts that are being certified. For civil procedural law, the specificity of the application of presumptions is associated with the restriction of the procedural form itself. Procedural actions of subjects of civil procedural legal relations are clearly regulated by law and must be carried out in accordance with it. In notarial activity, the principle of good faith is manifested in dispositiveness, the desire of individuals to exercise their civil rights in good faith and bear responsibilities, guaranteeing, consolidating their will by notarization, establishing maximum certainty, indisputability of specific legal relations. Key words: civil process, legal proceedings, presumptions in law, good faith, principles of law, presumption of good faith, notaries.

The Notary Law Politics in the Notary Position Act

This study aims to determine the legal politics of the political aspects behind the process of forming laws and policies in a particular field, as well as greatly influencing the performance of relevant government institutions in that field in applying the provisions of legal products and policies, and also determine the policies of these institutions in a practical and operational setting. This research is a qualitative research with a normative juridical approach. Notary activities in Indonesia are heavily influenced by politics and law itself. The conclusion is that political influence can be seen from the making of a political product in the form of a special law that regulates the position of a notary, namely Act No. 2 of 2014 jo. No. 30 of 2004 concerning the Position of a Notary. And the status of Indonesia, which is a state of law, of course, will also affect the actions and actions of notaries because they must be guided by the applicable laws.

СУСПІЛЬНІ ВІДНОСИНИ У СФЕРІ НОТАРІАЛЬНОЇ ДІЯЛЬНОСТІ ЯК ПРЕДМЕТ ПРАВОВОГО РЕГУЛЮВАННЯ

The study of the legal content of public relations in the field of notarial activity as a subject of legal regulation aims to increase the effectiveness of its mechanism, state regulation of this activity, creating appropriate organizational and legal conditions to improve protection of rights and interests of citizens and legal entities of Ukraine by subjects of notarial activity.The concept of «notarial activity» is not defined at the legislative level. The Law of Ukraine «On Notaries» uses the terms «notary», «notarial acts», «activities of notaries», «notarial activities», but the text of the law provides only a definition of «notary». Notary in Ukraine is a system of bodies and officials who are obliged to certify rights, as well as facts of legal significance, and to perform other notarial acts provided by law in order to give them legal credibility.Types of notarial acts authorized by notaries, officials of local governments, consular offices of Ukraine abroad and other, special, subjects of notarial activity, together constitute the subject of notarial activity.It is concluded that notarial activity is the activity of notaries, officials of local governments, consulates of Ukraine abroad and special subjects of notarial activity in the field of certification of rights, as well as facts of legal significance and other notarial acts, provided by the legislation of Ukraine, in order to provide them with legal credibility, which has both private and public law character, regulated by national legislation of Ukraine and international treaties of Ukraine, takes place both in Ukraine and abroad.

ЗАРУБІЖНИЙ ДОСВІД УПРОВАДЖЕННЯ МЕДІАЦІЇ В НОТАРІАЛЬНУ ДІЯЛЬНІСТЬ

The article is devoted to the study of foreign experience in the implementation of mediation in notarial activities. The concepts of “mediation” and “mediator” in the national legislation are analyzed and the problem of the lack of a unified approach to endowing representatives of different professions with the powers of a mediator is singled out. It is noted that, as a general rule, the opinion of scholars is focused on the expediency of empowering lawyers, judges and notaries to conduct mediation. Emphasis is placed on the relevance of studying foreign experience, due to changes in the legislation on notaries, according to which notaries have the right to mediate, provided they undergo basic training as a mediator. The positions of the Council of Notaries of the European Union and the European Commission on the effectiveness of justice have been taken into account, according to which, by their legal nature, notary representatives can play a crucial role in the mediation procedure. It has been established that with the trust of the public, they can use their legal knowledge and hearing skills in the dispute resolution process. It is determined that the peculiarities of the introduction of mediation by a professional lawyer in different countries depend on the legal status, education and other requirements for representatives of the legal professions. The experience of Austria, Germany, Spain, France, Belgium, Georgia, Poland and other countries is analyzed. It is concluded that the introduction of mediation into the national legal system by a notary is a positive step, as he is a qualified, impartial, neutral and independent lawyer. It is emphasized that the participation of a notary as a mediator in the settlement of a conflict (dispute) ensures the legality of the procedure, its voluntariness, the reliability of explanations and other information that the parties receive in the process of joint decision-making. There is a tendency to lack a single clear approach to the regulation of the powers of a notary mediator and the procedure for notarial mediation. The most optimal options for the development of notarial mediation are proposed, related to the authority to conduct mediation, develop and certify an agreement based on the results of mediation.