Providing evidence by a notary. Evidence Notary

The evidence is evidence that is obtained in the manner prescribed by law. Based on these materials, the absence or presence of circumstances substantiating the objections and claims of the parties involved in the case, as well as other information that is essential for a proper and comprehensive hearing, is determined. Normative acts provide for such a procedure as the provision of evidence. In the civil process, the role of a notary in its implementation is not explicitly specified in the Civil Procedure Code. According to the agricultural procedure, the procedure can be carried out at the request of the legal entity or individual according to the rules established for the implementation of preliminary measures. In this regard, the question often arises: will it be legitimate to provide evidence by a notary? On the Internet, various opinions are expressed in this regard. Further in the article we will examine this issue from the point of view of the law.

General information

The actions of a notary to provide evidence are provided for in accordance with Article 102 of the Fundamentals of industry legislation. These or other activities can be carried out by him at the request of interested subjects and if there are grounds for this. Provision of evidence is allowed by the specified authorized person in the framework of administrative and civil proceedings. Only a court can evaluate the reliability and sufficiency, admissibility and relevance of information. The legislation does not explicitly provide for the actions of a notary to provide evidence with a view to their subsequent submission to arbitration or arbitration. However, they are allowed, if this is defined in the regulations and provisions of these bodies. Provision of evidence by a notary public is not performed in cases which, at the time of the appeal of participants or interested parties, are in the process of judicial or administrative proceedings. This requirement is not valid in cases where it is necessary to provide supporting information on materials considered by authorities of foreign states.

Credentials

In order to provide evidence, the notary interrogates witnesses. He can also inspect things and written materials. The notary is also authorized to carry out an examination as part of the implementation of interim measures. In the process of activities, a person should be guided by the relevant provisions of the procedural legislation. The norms established that the authorized entity shall notify the place and time of the events of interested participants. Moreover, the absence of these persons is not an obstacle to the implementation of the necessary procedures. Interested parties may be direct participants in the proceedings - the defendant and the plaintiff.

Statement

Provision of evidence by a notary is made upon written request from interested parties. The legislation has a number of requirements for the content of the application. In it, in particular, there must be instructions on:

1. Evidence to be secured.
2. Circumstances and facts to be confirmed.
3. Reasons for the adoption of these measures.
4. Absence at the date of appeal of the case in the proceedings of an administrative body, arbitration or court of general jurisdiction.

To carry out the necessary procedures, the applicant must justify the reason why the provision of materials may subsequently become difficult or impossible.

Work with a witness

Such a person is an entity who knows anything about factual circumstances that are relevant to the proceedings and the resolution of the case. The court accepts only those testimonies whose source is named as a witness. The purpose of the conversation with the subject is to obtain information for their forthcoming consideration in arbitration or a judicial body of general jurisdiction. Providing evidence by a notary is done in this way for various reasons. For example, this may be caused by the need for the witness to travel abroad, on a long business trip and the impossibility of his personal presence at the meeting. The notary only interrogates the subject. The assessment of his testimony is not the responsibility of the authorized person.

Documentation

When conducting a conversation with a witness, a protocol for providing evidence by a notary is drawn up. A sample document contains:

1. Time and place of the procedure.
2. Data on the authorized person. It indicates the name of the notary public, the number and date of the order of appointment to this position, the name of the office or district.
3. Information about the witness and other participants in the procedure. Information includes F. I. O., address of residence, date of birth, details of an identity document.
4. Warning of the subject about the liability provided for the provision of knowingly false information and refusal to interrogate.
5. The content of the testimony of the person with the questions that he was asked.

The protocol for providing evidence by a notary is signed by the participants in the procedure, an authorized person who conducted it. The document is sealed. The subject who was called to testify can rely on reimbursement of expenses incurred in connection with this, as well as monetary compensation. These costs are reimbursed at the expense of the entity who applied to the notary.

Inspection of things and written materials

The Code of Civil Procedure and Agro-Industrial Complex defines such evidence. Written materials include information containing information on circumstances of importance for the trial and resolution of the case. It can be acts, certificates, agreements, business letters, other documents, which are made in the form of graphic, digital records. They can be obtained in various ways, including using facsimile, electronic and other communications or in another way that allows you to establish the reliability of the data. Written evidence is court decisions, sentences, other decisions, protocols of proceedings, meetings, annexes to them.

Object materials act as material materials, by their properties, appearance, location, and other signs, they can act as a means of establishing facts that are important for the consideration and subsequent resolution of the case. In order to provide evidence, a notary has the right to inspect these objects. This is done so that, using different methods of cognition, the official himself will be convinced of the existence of circumstances that are relevant to the case. The presence of these facts is also recorded by the protocol. It indicates information about all the subjects who participated in the examination, describes the identified circumstances. The document is signed by these persons and is certified by a seal placed by a notary.

Provision of evidence: examination

The study is appointed, if necessary, to clarify certain issues relating to the field of science, technology, art, etc. It should be noted that there is currently a discussion on this subject.In particular, experts argue whether a notary public can prescribe a study in order to provide evidence. According to the Federal Law No. 73, the decision of the court, investigator, and interrogator acts as the basis for its implementation. The notary does not say anything about the notary. Meanwhile, the basics of industry legislation allow authorized persons to designate and carry out research. When organizing it, the notary shall issue a decision in order to provide evidence. It indicates:

1. Date of adoption.
2. Information about the official who issued it. Given F. I. O., number and date of order, the name of the office or district.
3. Information about the subject who turned to the notary. It also indicates F.I.O., address of residence, date of birth, passport details.
4. Questions that the study should answer.
5. The name of the competent institution or information about the specialist who is entrusted with the examination.

As in previous cases, the decision is signed and certified by the seal. In order to provide evidence, a notary can only organize a study.

Procedure appointment

It is conditionally divided into two stages. At the first - organizational - an actual decision is made about the need to carry out the study. At the same time, the analysis of the collected materials is carried out, their completeness, reasonable sufficiency are evaluated. After that, a list of questions is compiled that should be clarified during the examination process. In accordance with the objectives of the study, a search is conducted for a competent institution or specialist. At the same time, the expert’s attitude to the persons participating in the proceedings, the absence or presence of grounds for challenge, specialization and professional level is checked. Next, the volume of materials to be provided to the researcher is determined. The procedural stage involves the issuance of a reasoned, reasoned decision on the appointment of an examination. The person authorized to organize the study explains to the specialist his duties and rights, according to the Code of Criminal Procedure, warns of responsibility for the provision of a knowingly false conclusion.

Nuances

Provision of evidence by a notary is carried out after notification of the place and time of a particular event of the alleged participants in the case, as well as persons whose interests may be affected by their conduct. The notification shall be sent in any way in which the fact of delivery will be recorded. This can be a registered letter with a notice, facsimile, telegram, etc. The legislation, however, provides for exceptions. In order to provide evidence, a notary has the right not to notify entities if the events:

1. Do not delay.
2. It is impossible to establish who exactly will subsequently participate in the consideration of the case.

If the procedures are carried out without notifying participants in other cases, the results may be challenged and not accepted by the court.

Additionally

In Art. 103, part 5 of the Fundamentals, the right of a notary is provided to inform the court of the failure to appear of a specialist or a witness upon proper notification to take the necessary measures. At the same time, no regulatory acts establish the liability of these persons in case of their failure to appear. In particular, the authority of a notary does not include calling an expert. An official can only organize a study. As for the witness, normative acts do not establish his obligation to appear upon notification, which is sent by a notary.

Providing evidence: Moscow

In the capital there are a huge number of offices in which various procedural measures are carried out. Recently, in Moscow, appeals of persons to a notary have become quite common to verify information posted on websites. In this, as in other cases, the interested entity fills out an application.In order to obtain the security of evidence by a notary public on the Internet, the person indicates all the links he is interested in, provides step-by-step access to the relevant pages. The statement describes the violations that became the basis for the appeal. For example, this may be the placement of information that discredits the dignity and honor, the business reputation of the applicant, reveals commercial or other secrets protected by law.

The author of the appeal indicates the name of the site to be inspected. Providing evidence by a notary public on the Internet, as in other cases, provides for notification of all potential participants in the proceedings. If the procedure is to be carried out without notice to the parties, the statement shall state the reason for this. Without notification, measures are taken without delay, with an undefined circle of persons, or if there is reason to believe that in the future the provision of evidence may be difficult or impossible. It is mandatory to indicate that the case is not in the proceedings of an administrative body or court. After accepting the application, the official performs an inspection. According to the results of the procedure, a protocol is made in duplicate. One is given to the applicant, the second is placed in the archive of the authorized person. At the request of the subject, the notary can make a third copy.

Examples

In practice, quite often authors of printed publications turn to notaries. For example, in one of the cases, a statement came from a person who wrote a fairly popular book that was successfully sold. The author received a good reward. The need to turn to a notary public arose when a complete essay was posted on one of the sites (indicating the author). There were fears that no one would buy the print edition, since it was in the public domain. Accordingly, the author turned to a notary public for providing evidence, hoping to resolve the dispute in pre-trial procedure. The specified site was viewed, the corresponding document was compiled. As a result, the dispute did not reach the court; interested parties were able to resolve the situation. It is worth saying that in such cases the role of notaries is quite large. It is a tool of preventive justice, since the courts are virtually unloaded. Along with this, the authority of the notary is significantly increased.

If you approach this issue competently, then it makes no sense to contact the court, since the subject will have indisputable evidence on hand. Notaries are requested to provide evidence in a wide variety of cases. So, often officials have to inspect real estate, land. In this case, photo and video shooting can be done. Inspections are often carried out on premises to provide evidence of leaks. Officials are contacted by representatives of a wide variety of firms. Notaries often inspect advertising structures that are damaged by vehicles. In this case, you have to make photo tables. It is advisable to shoot with a conventional (non-digital) camera and save the film. This will eliminate the doubts of lawyers trying to challenge the actions of a notary. It is also worth mentioning that in the practice of the FAS there are cassation rulings in which, on the basis of documents drawn up as part of the above procedures, decisions are made on rather large amounts. Moreover, each time the evidence was accepted, no one disputed their reliability and admissibility, and the arbitration itself relied on them when making decisions. It should also be borne in mind that under Art. 55 Code of Civil Procedure, video and audio recordings may be used as supporting materials.For example, tenants, who were flooded by neighbors from above, call a notary public and draw up a protocol for inspecting the apartment with him. It does not make sense to check the conclusions or references of the Housing Office. Similarly, eyewitnesses to road accidents who travel through the village and are not going to visit it again in the near future, much less participate in the hearing, can, with the help of a notary, document their evidence in the nearest office. So they can help the victims or other interested parties in the proceedings. The official will record their testimony, draw up a protocol and submit it to the court.