Notarial acts. Powers and responsibilities of a notary

Notarial law is considered a comprehensive legal industry. It combines various norms. Among them are substantive, procedural, and organizational.

Common symptoms

Notarial practice has certain distinctive features. These signs should include:

1. The presence of a codified legal act. It is the basis of the legislation on notaries. It contains the basic requirements and the general part.
2. Legal integrity. It is formed not only because notarial acts have a single regulatory framework. Legal integrity is ensured by the presence of a common subject of regulatory impact. Actually, it is relations related to the performance of notarial acts.
3. Complexity It is confirmed by the fact that the industry includes civil, family, administrative and other legal norms.
4. The presence of certain principles, techniques, provisions, methods of regulation. They form a specific legal regime, which is characterized by a high level of procedural and procedural regulation of the behavior of all participants. At the same time, in its legal model, it does not coincide with the interaction of the parties to civil relations.

Specificity

The institute under consideration refers to both private and public legal sphere. It is located on the border of these areas. Public nature stems from the nature of the notarial activities and the functions of authorized persons and bodies - they delegated part of the authority of state structures. At the same time, the institute regulates legally significant events in the field of civil circulation, as well as a qualified model for their consolidation. This is the private nature of the notary.

Regulatory methodology

Notarized acts are the subject of regulation. Legal entities and citizens apply for their commission to the relevant competent institutions. The regulatory method is a set of legal techniques and ways of influencing emerging relationships and notarial acts. Within the framework of the institute under consideration, the methodology is derived from the legal sectors in which its regulatory framework is present. She advocates private and public law. It follows that the industry combines and implements imperative elements with a dispositive beginning. So, on the one hand, all types of notarial actions related to the implementation of material and procedural rules are strictly regulated. On the other hand, the subjective legal possibilities of those areas that are formed on the equality and dispositiveness of participants are realized in relations. The following facts act as confirmation of the imperative nature of the regulation method principles:

1. The norms ensure the position of an authorized person as a representative of public government.
2. Notarial acts are the basis of legal facts.
3. When exercising powers, a person is guided by the provisions that are strictly regulated by the procedural order.

Confirmation of dispositiveness is the following:

1. Existence of a guarantee system for the legal capabilities of participants in a relationship. Their observance rests with the notary.
2. Freedom of appeal to an authorized person has been established. It proceeds from the dispositiveness of civil rights.

Industry structure

Notarial law contains both questions relating to the organization of a notary public in Russia, as well as those related to the procedure for carrying out appropriate actions. It follows from this that the industry is a procedural and procedural one. The whole system is formed by different elements and is divided into special and general parts. The latter include:

1. The concept, principles in accordance with which the notary office and its production are organized, the functions of the institute in the legal system, sources.
2. Terms of access to the profession.
3. Organization of a notary public and self-government bodies.
4. Subjects and their relationships.
5. The foreign system and the activities of domestic notaries in the International Union.

The special part includes:

1. Industry economy.
2. General rules of notarial actions (production).
3. Features of the implementation of individual powers.
4. Matters relating to international private law and civil procedural notarial activities.

Legality

Notarial acts are legal in nature. This means that authorized persons exercise their powers in accordance with the law and in the manner established by them. Any notarial chamber operates on the principles reflected in legal norms. They reflect the most significant features of the institution in question. Of rule of law it follows that the notary public must strictly follow the regulatory requirements. It should also be guided by the Basic Law of the Russian Federation, the constitutions of the republics that are part of the country, industry legislation, regulatory acts of state authorities of autonomous regions and districts, territories, regions, cities of federal significance. This requirement is contained in Art. 5 Basics of legislation on notaries.

Protecting the interests of applicants

According to Art. 16 of the Fundamentals of industry legislation, a notary public should assist entities in the implementation of their legal capabilities. The official also, within the framework of his competence, shall protect the interests of legal entities and citizens who have applied to him. He must explain to them their rights, obligations, warn about the consequences that may arise after the commission of certain notarial acts. This is necessary to prevent situations where the legal ignorance of entities can be used against them. If the notary has doubts about the voluntary will of the person, he is obliged to refuse to perform the required actions.

Secrecy

The notary in the course of his work works with a wide variety of information. Legislation obliges an official to keep them secret. Only a court can exempt a notary from it if criminal proceedings are instituted against him in connection with the actions he has committed. This provision is established in Art. 16 Fundamentals Intentional disclosure of information regarding the performance of notarial acts entails liability.

Impartiality

This principle is enshrined in Articles 5 and 6 of the Fundamentals. In accordance with it, the notarial chamber is obliged to equally protect the interests of all participants in the proceedings. The principle of impartiality implies the personal disinterest of an authorized person in current events and their results. Moreover, certification of transactions or other procedures should be carried out with equal treatment of all participants.

Authorized Independence

In accordance with this principle, a notary performs actions and exercises his authority without any influence. It can be guided only by legislative norms. The principle of independence is reflected in Article 5 of the Fundamentals. It acts as a guarantee of notarial activities. Thus, no citizen or authority can influence the procedure for the exercise by a responsible person of his powers.

Notarized translation of documents

The work of authorized persons is carried out in the official language of the Russian Federation, as well as provided for by the constitutions of the republics within the country. Foreign entities should be able to transliterate. In addition, often there is a need to carry out notarized translation of documents. It is necessary to give legal force to acts for their subsequent use both on the territory of the Russian Federation and abroad. The seal and signature of the authorized person will indicate that the content of the paper is certified by a notary. In this case, an important detail should be taken into account. Notary certification is subject to acts provided by certified professionals with the appropriate qualifications. Most often, passports, work books, certificate / diploma and other papers are certified. They are used to enter a university abroad or in the Russian Federation (if the applicant is a foreigner), to obtain citizenship, a residence permit, and so on. In addition, they certify contracts, agreements and other legal papers for international business cooperation.

Other principles

Articles 22, 23 fix the principle of self-financing. In accordance with it, the activities are provided by notaries independently at the expense of the notaries. The following is the principle of dispositivity. It is a rule according to which persons interested in the result of a case can independently dispose of the material rights and methods of protection that belong to them in the framework of the proceedings.

Important point

The work of authorized persons in the industry in question is not an enterprise. Any, including private, notary acts on behalf of the Russian Federation. His work is not aimed at making a profit. The relationship that is established between the authorized person and the contacting entities is not of a contractual nature. They are based on public law principles. This is due to the fact that any, including private, notary public acts as an element of the general system of providing qualified legal assistance. The provisions of the law governing the protection of consumer interests are not applicable to the work of officials. Art. 48 of the Constitution establishes that each entity can receive qualified legal assistance. In cases provided for by law, it is provided free of charge.

Separation of powers

According to Articles 35-38 of the Fundamentals, public notaries implement all the functions established by industry legislation. For another category of specialists, certain restrictions apply. Thus, private notaries exercise the powers established by the Fundamentals, in addition to taking measures to protect the property of the deceased and issuing the property of inheritance. Officials of consular posts may carry out all the actions defined in the Fundamentals, with the exception of:

1. Certificates of non-payment by check.
2. Protest bills.
3. Certificates of transactions with real estate located in the Russian Federation.
4. Removal and imposition of the prohibition of the alienation of material values.
5. Transfer of applications from some individuals / legal entities to others.

Notarial documents

As part of the production, officials draw up various papers. One of them is a notarized power of attorney. It is issued to a legal entity or a citizen to represent the interests of an entity to third parties. The presence on the document of an inscription that it was certified by a notary guarantees the conformity of paper to the requirements of the law. In addition, this mark indicates the full legal force of the act. A notary can certify any power of attorney. However, some types of such securities are subject to mandatory certification. These include power of attorney:

1. Issued for concluding a marriage contract, transferring a debt, assignment of claims, etc.
2. Provided with the possibility of conversion.As an exception, securities issued in accordance with paragraph 3 of Art. 187 Civil Code.
3. Irrevocable. They may include conditions on the basis of which the duration of the act cannot be canceled. As a rule, it is prescribed for transactions related to entrepreneurial activity. When it is drawn up, the provisions of paragraph 2 of Article 188.1 Civil Code. In accordance with the norm, irrevocable powers of attorney are issued without the possibility of reassignment.
4. Executed to apply for state registration. A notarized power of attorney of this type also makes it possible to dispose of the rights that have been registered in state registers.

The period during which an act issued by an authorized person has legal force cannot be more than three years. This requirement is established in Art. 186 GK. In the absence of indications in the power of attorney for a period, its strength is maintained for 1 month. If the paper is issued to represent the interests of the subject abroad, then the period lasts until the termination of powers. Often, citizens have to submit copies of various acts to government agencies. Depending on the specifics of the service that the entities want to receive, authorized bodies may require certified copies of securities. A notarized copy has the same legal force as the original. To certify the copy, you must provide the original and a civil passport. The legislation does not establish any restrictions on the validity period of a notarized copy.

History of the Institute

A notary is considered part of the legal system of any country. This is primarily due to the fact that the functions that it performs are objectively in demand and necessary in society. Notary appeared in the time of Byzantium and Ancient Rome. In that era, a special institution of authorized persons was already formed. They were the scribes-tabellions who were in the civil service, and the scribes who served with private individuals. Shorthand records were used for recording speed. From Latin, “note” is a “sign”. Accordingly, the persons involved in the design, called notaries.

In Russia, the institute began to develop in the 15th century. At that time, transactions related to the transfer of rights to certain property items were formalized by acts. Each of them was recorded in a special book of orders. From this moment it was believed that the transaction was concluded. Persons who carried out this procedure were called arena clerks, since they worked on the squares (for example, Ivanovskaya Square in Moscow). All these persons united in a kind of corporation of scribes, acting on a professional level and specialized in making transactions for a fee in the interests of the subjects who turned to them. If someone wanted to take a place in the square, then he submitted a petition. From the elected elders came a business and moral characterization. Appointment was carried out by royal decree. At the same time, the scribe corporation vouched for the new scribe. In particular, they committed themselves to indemnify for damage caused by the designated person. State control was not established for the activities of the clerks. The place was very profitable, and if any violation was committed, the person would be removed from office as a punishment. No other administrative sanctions were provided. Over time, the state began to strengthen control over the scribes. The powers of the elected elders included supervision of them.

In 1597, Tsar Fyodor Ioannovich introduced by his decree a mandatory certificate of certain types of merchant class fortresses of the Serf Order. It was an interrogation of witnesses to establish the good faith and authenticity of the transaction, to verify the existence of prohibitions on expropriation and encumbrances, as well as ownership of the owner. In 1649 the Council Code was adopted. Tsar Alexei Mikhailovich delimited the functions of the authorities that committed and registered the transaction. In 1699Peter the Great institute of arena clerks was abolished. At the same time, he transferred serfdom to the jurisdiction of town halls, governors, and justice colleges. After that, transactions were moved to special public places. However, after some time, Peter again had to return peasant affairs to the clerk. This was due to the widespread bribery and incompetence of officials.

During the reign of other monarchs, notarial affairs were often transferred to various institutions. Fundamental transformations occurred only in 1866. Alexander the Second approved the Regulation on the notarial part. In accordance with it, special posts were established for persons on the courts. Notaries were appointed by the senior chairman of the court of justice. The situation was valid until the October Revolution.

Institute development in the 20th century

After the revolution, the Decree "On Judgment" abolished all the regulations that were in force earlier. Despite the fact that it did not say anything about the Regulation adopted by Alexander the Second, the notary ceased to exist. Its functions began to carry out various institutions. In 1919, Decree No. 2 was issued. In accordance with it, all notarial acts were carried out by authorized persons. In 1922 a new Regulation was adopted. It completed the establishment of the institute as an independent state institution after 1917. In 1973, the Soviet government adopted the Law "On State Notaries." It determined the basic principles, order, competence, responsibilities, authorized persons. In connection with the transition to a new economic regime and the emergence of various forms of ownership after 1991, the need arose to reform the existing institution. The current Notary Fundamentals of Legislation were approved in 1993.