Advocacy and notaries. Cheat sheet: briefly, the most important

Lecture notes, cheat sheets
Free library / Directory / Lecture notes, cheat sheets

Advocacy and notaries. Cheat sheet: briefly, the most important

Lecture notes, cheat sheets

Table of contents

1. Advocacy and its appointment in society

Traditionally, it was generally accepted that the role of the legal profession in Russia was limited to ensuring the suspect, accused or defendant the right to defense in court, providing advice and representation in civil proceedings. However, the activities of the Russian Bar over the past ten years since the self-transformation of this institution in accordance with the trends of new times (early 1990s) have changed significantly.

Article 2 of the Constitution of the Russian Federation proclaims human rights and freedoms as the highest value and establishes that the protection of these rights and freedoms is the duty of the state. Since a critical form of protecting human rights and freedoms is the protection of a citizen from unjustified imprisonment, and criminal prosecution in accordance with Art. 48 of the Constitution of the Russian Federation is carried out with the mandatory provision of qualified legal assistance (i.e., the assistance of a lawyer), the state is obliged to provide such legal assistance.

Lawyers are united in chambers of lawyers, and together individual lawyers and chambers of lawyers form the bar, which today is the only legally recognized institution of civil society. The Constitutional Court of the Russian Federation, in its ruling of December 21, 2000 No. 282-O, indicated that "the activities of lawyers, who are entrusted with the duty to ensure the protection of the rights and freedoms of man and citizen, have public legal significance."

Not the state, but the author of the Constitution of the Russian Federation - "the multinational people of the Russian Federation" (the preamble to the Constitution) - endowed the bar with an inalienable right to fulfill the obligation to protect the highest constitutional value - human rights and freedoms.

The fact that the Bar is named in Art. 3 of the Law on Advocacy as an institution of civil society, emphasizes, on the one hand, the equality of the bar and the state in the sense of Art. 19 of the Constitution of the Russian Federation, and on the other hand, the independence of the bar from the state and the obligation of the state to ensure the independence of the bar as a component of ensuring the protection of the rights of citizens, prescribed by Art. 2 of the Constitution of the Russian Federation.

Moreover, in order to implement the provisions of the Constitution of the Russian Federation, the bar is also an institution that has the duty to ensure the protection of the rights of civil society, to be its representative and defender in the face of the state in the public law sphere. Of course, other institutions of civil society can protect human rights and freedoms, but only the bar has such an obligation, supported by the requirement of Art. 48 of the Constitution of the Russian Federation on the provision of qualified professional legal assistance.

2. Basic principles of the advocacy

The advocacy implements its tasks to civil society by fulfilling the principles of its activities, defined in Part 2 of Art. 3 of the Law on Advocacy. These include the principles:

1) rule of law;

2) independence;

3) self-government;

4) corporatism;

5) equality of lawyers;

6) the moral principles of the profession of a lawyer.

The principle of legality in relation to advocacy is expressed in Art. 4 of the Law on the Bar, which establishes that the legislation on the practice of law and the bar is based on the Constitution of the Russian Federation and consists of the Law on the Bar itself, other federal laws adopted in accordance with federal laws and other regulatory legal acts.

The principle of independence characterized by the fact that the bar is not included in the system of state authorities and local governments. This principle means the economic independence of a lawyer, as well as the difficulty of bringing him to justice.

The principle of self-government is that the bar (including bar associations) cannot be created, managed or liquidated by state or other bodies, organizations or persons who are not lawyers.

Corporate principle consists in the association and activities of lawyers through their organization (corporation of lawyers), which establishes its corporate rules of conduct and other norms, resolves issues of lawyers' responsibility, regulates other issues of advocacy in accordance with the rules of law and the wishes of lawyers.

The principle of equality lawyers lies in the absence of castes in the legal profession, the division of lawyers into superiors and subordinates, senior and junior in rank, employers and employees. According to this principle, all lawyers are equal:

1) when acquiring the status, the same requirements apply to all applicants;

2) all lawyers have equal rights and obligations;

3) the legislation guarantees the equality of the status of lawyers, regardless of the time of acquiring this status. The only exceptions are lawyers of foreign states, who can provide legal assistance in the Russian Federation only on matters of the law of a foreign state, and they are not allowed to provide legal assistance on issues related to state secrets.

The principle of moral principles in the profession of a lawyer suggests that a lawyer should be a model of moral purity, impeccable behavior and qualifications.

3. The origin of the legal profession in Russia

For the first time, judicial representation is mentioned in Russian legislative acts of the XNUMXth century. (Pskov and Novgorod judicial charters).

In the Code of Laws of 1497 and 1550, and then in the Council Code of 1649 (Chapter 10, Article 108), the institution of hired attorneys already appears as existing, but the composition of these persons was very diverse, because at that time there was still no legislative regulation of representation (cooking).

The official date of formation of the bar is November 20, 1864, when the "Institutions of Judicial Regulations" were published. The institution of sworn attorneys was created as a special corporation, which was attached to the judicial chambers.

As a result of the Judicial Reform of 1864, the judicial system of Russia became the most streamlined. However, after the February Revolution, the situation changed somewhat. By Decree No. 24 on the court of November 1917, 1, the socialist revolution abolished all judicial institutions of the Russian bourgeois state, and with them the jury and private advocacy.

Over time, the proletarian state needed a new form of defense organization. By Decree No. 2 of March 7, 1918, on the court, a collegium of persons was formed under the Soviets of Workers', Soldiers' and Peasants' Deputies who devoted themselves to advocacy "both in the form of public prosecution and in the form of public defense."

In view of this, the IX All-Russian Congress of Soviets, in a special resolution, proclaimed the next task "to establish in all spheres of life the strict principles of revolutionary legality."

From that moment on, legislative activity was aimed at creating a unified judicial system.

On October 29, 1924, the Central Executive Committee of the USSR adopted the Fundamentals of the Judicial System of the USSR and the Union Republics. Article 17 established the bar associations. The Regulations on the Judiciary of the RSFSR, adopted on November 19, 1926, indicated that they operate under the direct supervision and guidance of the regional, provincial and district courts.

In order to establish control over the legal profession, in November a department of legal protection was formed under the People's Commissariat of Justice of the USSR. On August 16, 1939, the Council of Ministers of the USSR approved the new Regulations on the Bar.

The first attempt to return the former independence of the Bar was made in the Regulations on the Bar in 1962. On November 30, 1979, the All-Union Law and the Law of the RSFSR "On the Bar" were adopted, and on November 20, 1980 - the Regulations on the Bar in the RSFSR.

In 1986-1988 a "corporate boom" took place in the country: cooperatives began to appear in all areas of activity. The result of this almost ten-year struggle was Law No. 63 FZ "On Advocacy and Advocacy in the Russian Federation", which was adopted on May 31, 2002.

4. Lawyer and his professional activities

Lawyer - this is a person who has received the status of a lawyer and the right to practice advocacy. At the same time, the procedure for obtaining the status of a lawyer must comply with the Federal Law "On Advocacy and the Bar".

The status of a lawyer in Russia is entitled to be acquired by a person who has a higher legal education obtained at a state-accredited educational institution of higher professional education, or a degree in a legal specialty. The applicant must also have at least 2 years of work experience in the legal profession or have completed an internship in any lawyer education.

Advocacy is recognized as qualified legal assistance provided on a professional basis by persons who have received the status of a lawyer in the manner prescribed by the Federal Law "On Advocacy and Advocacy" in the Russian Federation, individuals and legal entities (principals) in order to protect their rights, freedoms and interests, as well as ensuring access to justice.

The main features of advocacy include the following:

1) provision of qualified legal assistance to individuals and legal entities (principals);

2) provision of such assistance by persons working on a professional basis;

3) persons providing legal assistance must have the status of a lawyer, which is obtained in the manner prescribed by the Federal Law "On Advocacy and the Bar"; the objectives of this activity should be:

a) protection of the rights, freedoms and interests of principals;

b) ensuring access to justice. Only the presence in the activity of a combination of all four of the above signs gives grounds for recognizing it as a lawyer.

Advocacy is not entrepreneurial. This means that its purpose cannot be profit making. All income of a lawyer association or an individual lawyer is, by its legal nature, not the result of commercial or other entrepreneurial activity, but remuneration paid by the client. In the structure of the balance sheet of a lawyer, there should be no indication of profit.

Advocacy is diverse and carried out in various forms, which can be classified as follows:

1) consulting assistance to the principal;

2) drafting documents of a legal nature;

3) acting as a representative or defender of the principal.

The representative functions of a lawyer are listed in general form in the Law on the Bar. At the same time, the institution of representation and the powers of representatives are detailed in each industry and require specification depending on the legal relations that have arisen.

5. Organization of advocacy and advocacy in the Russian Federation

Organization of advocacy - this is a legal and organizational form of association of lawyers in an appropriate structure for the effective implementation of their tasks. With the help of organizational forms of the advocacy, the following is carried out:

1) the practice of advocacy itself;

2) legal, social and other guarantees of this activity are provided, protection of lawyers from illegal actions and interference in the activities of the bar by the state.

The main link in the advocacy system is bar association(Article 29 of the Federal Law "On advocacy and advocacy") - a non-governmental non-profit organization based on the mandatory membership of lawyers from one constituent entity of the Russian Federation.

Law office(Article 21 of the Federal Law "On Advocacy and Advocacy"). In relations with third parties, the lawyer acts on his own behalf. The advantages of the activity of a lawyer in the form of a lawyer's office are that, in organizational terms, work in a lawyer's office is not associated with mutual obligations with other lawyers based on the foundation, does not entail reports to the collective management body, such work has the nature of individual activity with all its merits and demerits.

Collegium of Advocates - the organizational and legal form of the legal profession, in which advocacy is carried out on a collective basis (Article 22 of the Federal Law "On advocacy and advocacy"). It is established by decision of two or more lawyers. The number of founders of a bar association is not limited, but they can be lawyers whose information is entered in only one regional register.

Law Office - another collective organizational and legal form of advocacy (Article 23 of the Law on the Bar). According to paragraph 2 of Art. 23 of the Law on the Bar, relations arising in connection with the establishment and activities of a law firm shall be governed by the rules relating to the bar association, unless otherwise provided by law. Additionally, it is established (clause 3, article 23 of the Law on the Bar) that lawyers who have established a law office conclude a partnership agreement between themselves in a simple written form.

Legal consultation is established by the bar association of the constituent entity of the Russian Federation, on the territory of which it will carry out its activities, on the proposal of the state authority of this constituent entity of the Federation. The decision to establish a legal advice office is made by the Council of the Chamber of Lawyers as its collegial executive body.

Legal advice is created in order to ensure the availability of legal assistance throughout the territory of the subject of the Russian Federation, including legal assistance provided to citizens free of charge. In this regard, a legal advice office is established on a mandatory basis if, in the territory of one judicial district, the total number of lawyers in all bar associations located on the territory of this judicial district is less than two per federal judge.

6. Professional ethics of a lawyer

In the countries of the European Community there is a "Common Code of Practice for Lawyers in the European Community". At a conference held in September 1990 in New York, the International Bar Association adopted a legal document, Standards for the Independence of the Legal Profession of the International Bar Association.

On January 31, 2003, the First All-Russian Congress of Lawyers adopted the Code of Professional Ethics for Lawyers. This document establishes the rules of conduct binding on every lawyer in the exercise of advocacy, based on the moral criteria and traditions of the legal profession, as well as on international standards and rules of the legal profession.

Honesty in advocacy involves:

1) subjectively honest attitude to the expression of individual assessments, personal opinions, the lawyer's own position;

2) honest behavior of a lawyer in relations with other people;

3) suppression of dishonesty, fraud, other crimes in the provision of legal assistance to a client;

4) the right of a lawyer to choose his behavior and his position in relations with the client and the court, compatible with his lawyer status.

In order to achieve a sufficient level of professionalism in the performance of their duties, a lawyer must:

1) closely monitor the development of legislation in all areas of law that he encounters in his activities, be aware of law enforcement practice, maintain and improve his qualifications;

2) be able to correctly assess the level of their competence, the complexity and specifics of the task, be able to correctly and timely solve problems related to the execution of the client's order;

3) in case of insufficient own qualifications, when the client requests to conduct the case, he must either refuse the assignment, or obtain the client's consent to consult with another lawyer competent in this field, or to cooperate with him;

4) in case of refusal to execute the client's order due to his insufficient competence, the lawyer must recommend another specialist, and such assistance must be provided on an internal conviction.

The principle of good faith means that a lawyer, in the performance of his professional duties, must act with the greatest dedication of his own strengths and abilities, make every effort to provide qualified assistance to the client in the shortest possible time and with the maximum consideration of the interests of the latter.

7. Strategy and tactics of a lawyer at the stage of preliminary investigation of a criminal case

The main goal of a lawyer’s activity is to respect the rights of the client. The directions contributing to its achievement are the following:

1) exclusion of unreasonable prosecution;

2) mitigation and adequacy of punishment in case of its inevitability.

For the most effective implementation of the functions of protection at the stage of preliminary investigation, the lawyer carries out his activities in certain forms:

1) giving advice to the client;

2) development of the direction of protection;

3) participation in investigative actions;

4) interaction with law enforcement agencies;

5) establishing contact with a representative of the injured party, working out possible cases of compromise (peaceful regulation);

6) appeal against the actions of law enforcement officials;

7) conducting a legal investigation;

8) analysis of evidence in terms of admissibility, relevance, reliability, sufficiency.

According to part 3 of Art. 86 of the Code of Criminal Procedure of the Russian Federation, a lawyer is subject of proof.

The proof carried out by a lawyer in criminal cases is unilateral in nature - it is aimed at protecting the rights and interests of the suspect, the accused, the defendant. This circumstance plays a decisive role in determining the circumstances that he has to establish in a particular criminal case.

Based on the defense tactics developed in a criminal case and agreed with the client, the lawyer determines the scope, sequence and stage of presentation of evidence collected in the interests of defending the suspect, accused, defendant.

One of the ways for a lawyer to provide evidence in pre-trial proceedings is to participate in the proceedings investigative actions. Here, the lawyer’s goal is to identify circumstances and evidence that influence the resolution of the question of the defendant’s guilt, the qualification of the act committed by him, the type and amount of responsibility or release from it.

With regard to the stage of familiarizing the lawyer with the materials of the completed preliminary investigation, practice and theory have developed a number of methodological recommendations, the implementation of which is determined by the moment the lawyer enters the case. If he participates in the case from the moment the suspect is detained or the person is brought in as an accused, then first of all, one should begin to study the materials related to the accusation of the person defended by the lawyer, carefully and carefully study the decision to bring him in as an accused. This will make it possible to determine which volumes of the case materials and to what extent are to be studied.

8. Rules for the acceptance of the defense and the admission of the defense counsel to participate in the case

In criminal proceedings, a lawyer participates, on the one hand, as a defender of a suspect, accused, defendant and convict (parts 1, 2 of article 49 of the Criminal Procedure Code of the Russian Federation), on the other hand, a lawyer also has the right to participate in criminal proceedings as a representative of the victim, civil plaintiff, civil defendant and private prosecutor (Articles 43, 45, 55 of the Code of Criminal Procedure of the Russian Federation).

The admission of a defense lawyer to criminal proceedings is regulated by Part 2 of Art. 48 of the Constitution of the Russian Federation and part 3 of Art. 49 Code of Criminal Procedure of the Russian Federation. In accordance with the constitutional provisions, every detainee, taken into custody, accused of committing a crime has the right to use the assistance of a lawyer (defender), respectively, from the moment of detention, detention or charge.

The basis for the participation of a lawyer in criminal proceedings as a defense counsel or representative is an agreement between a lawyer and a client on the provision of legal assistance, set out in a contract of agency, which is drawn up in a simple written form (clauses 1, 2, article 25 of the Law on the Bar).

A lawyer is allowed to participate in a criminal case as a defense counsel upon presentation of a lawyer's certificate and a warrant (Part 4, Article 49 of the Code of Criminal Procedure of the Russian Federation). One and the same advocate is not entitled to defend two suspects, accused or defendants if the interests of one of them conflict with the interests of the other.

The Code of Criminal Procedure of the Russian Federation categorically prohibits a lawyer from refusing to take on the defense of a suspect, accused, defendant (Part 7, Article 49) for any reason, motive, or consideration.

The moment when a lawyer is allowed to participate in a criminal case is not the same as when he takes over the defense. This moment is not directly defined by law, but there is no doubt that it precedes the admission of a lawyer to participate in the case. If the lawyer assumed the defense of the named participants in the criminal proceedings, he would not be allowed to participate in the criminal case.

If the order is accepted, the lawyer draws up a warrant, which he submits to the investigator in charge of the investigation. Admission to participate in the case is made on the basis of a petition, which indicates all the details of the warrant, as well as a request for the appropriate notification of the administration of the place of temporary detention of his client and the provision of visits with him.

At the request of the suspect, the accused, the defendant, the interrogating officer, the investigator, the prosecutor and the court shall ensure the participation of the lawyer in the case. The appointment of a defense lawyer by them to participate in a criminal case is obligatory for him, and the costs of paying a lawyer are compensated at the expense of the federal budget (part 5, article 50 of the Code of Criminal Procedure of the Russian Federation).

In the complex of procedural rights of a suspect, accused, defendant, there is also such as the right to refuse legal assistance from a defense lawyer at any time in a criminal case (Part 1, Article 52 of the Code of Criminal Procedure of the Russian Federation). Procedural actions performed without the participation of a lawyer, after the admission of the defense counsel to the case, are not repeated.

9. Activities of a defense counsel in a court of first instance in a criminal case

During the judicial investigation, built on the basis of competition and equality of the parties, the lawyer has a real opportunity to actively participate in the study of circumstances and evidence that justify or mitigate the responsibility of his client: the testimony of witnesses, expert opinions, material evidence, documents.

The defense counsel at the stage of consideration of the case in the court of first instance has the right to collect information, ask the court by filing appropriate petitions for the interrogation of witnesses, the request for additional evidence, etc. According to Art. 274 of the Code of Criminal Procedure of the Russian Federation, the evidence of the prosecution is first examined, and then the defense.

During the trial the defender's position must be active. He needs to participate in the study of evidence. It is especially important to ensure the immediacy of the examination of evidence in court proceedings (Article 240 of the Code of Criminal Procedure of the Russian Federation). Immediacy implies the duty of the court to personally perceive, consider and examine the evidence available in the case and submitted to the court, on the basis of which the presence or absence of circumstances to be proved in a criminal case will be established. This approach of the legislator makes it possible to exclude distortion and manifestation of subjectivism.

Lawyer during interrogation will ask questions in favor of the defendant. Therefore, it must be taken into account that the prosecution can use the right of cross-examination, that is, it is desirable to prevent questions that are unfavorable for the defense so that the most favorable and least vulnerable answers are given to them.

The procedure for interrogating a witness established by the Code of Criminal Procedure of the Russian Federation provides the defense side with the most opportunities to clarify the circumstances that testify in favor of the client.

During the interrogation, the lawyer has the following goals and objectives:

1) obtaining from a witness in accordance with the requirements of the Code of Criminal Procedure of the Russian Federation full, truthful, objective evidence;

2) an explanation of the reasons for the contradictions in the testimony of the same witness during interrogations conducted at different stages of the investigation;

3) revealing the inconsistency of the testimony of the witness with the materials of the criminal case, as well as the testimony of the accused, the victim and other participants in the process;

4) obtaining evidence from a witness that justifies the client, mitigating his responsibility;

5) selection of materials for defensive speech.

During the interrogation, it is necessary to establish psychological contact. A lawyer has no right to encourage a party’s desire to confuse the court or give false explanations. Therefore, pre-trial preparation of the defendant and the defense witness can be reduced to counseling on how to give an answer without damaging the defense tactics, but within the framework of the law.

10. The content of the defense speech

After the end of the judicial investigation, the court proceeds to hearing judicial debates, the content and procedure of which are defined in Art. 292 Code of Criminal Procedure of the Russian Federation.

The court speech of a lawyer in a criminal process is a public speech by the defender of the accused (maybe also the representative of the victim, civil plaintiff, civil defendant), delivered in court and addressed to the court in order to psychologically and legally influence them when presenting the conclusions of the defender in favor of the defendant. them a citizen.

The content of the lawyer's speech is determined by the position on the case. According to established practice, there are three main defensive positions that determine the volume and structure of speech in a particular case:

1) position on mitigation of punishment;

2) a position on changing the qualification of the deed;

3) the position on the justification of the defendant.

The purpose of the defense speech of the lawyer is twofold. On the one hand, it is necessary to substantiate your position on the case, on the other hand, to convince the court that you are right. The speech in the debate should be pre-planned and composed. The main characteristics of a successful speech are its brevity and richness.

The defensive speech consists of an introductory (descriptive) part, analysis and evaluation of evidence and data on the personality of the defendant, analysis of the reasons that contributed to the commission of the crime, as well as a conclusion.

Analysis and evaluation of evidence are carried out according to a certain scheme:

1) each evidence is analyzed separately, and then in conjunction with all the others;

2) the analysis and assessment of the testimony of witnesses depends on whose side he spoke. Here it is necessary to convince the court whether it is worth or not to trust this or that testimony of witnesses;

3) in relation to the testimony of the victim, tact and restraint must be shown;

4) when evaluating the expertise, it is worth paying attention to the personality of the expert, the data that were presented to him, the technical and legal justification of his conclusions.

In conclusion, it is necessary to emphasize the key points of the defense position. At the same time, the weakness of the accusation cannot be directly emphasized.

Protective speech has certain features in the production of a criminal case with the participation of jurors. In this case, citizens who are not professional lawyers act as judges. Therefore, the lawyer should focus on the emotional side of his speech when characterizing the personality of the defendant. During the presentation of evidence, it will be advisable to use visual aids, diagrams, photographs, etc. This will help them recreate a picture of what happened.

When speaking, the lawyer must look at the jury without losing eye contact.

11. The activities of the defense counsel in the courts of appeal, cassation and supervisory proceedings in a criminal case

Court decisions that have not entered into force, the lawyer has the right to appeal in cassation or appeal (parts 3, 4 of article 354 of the Code of Criminal Procedure of the Russian Federation). To exercise the right to a cassation (appeal) appeal against the verdict, a lawyer does not need special permission, since this right is granted to him by law as an independent subject of the defense in criminal proceedings.

First of all, the lawyer must carefully read the verdict in order to make sure that it meets the requirements of legality, validity and fairness.

Next, the lawyer decides on the cassation appeal of the verdict in full or in a certain part, and coordinates his decision on this with the defendant. The convicted person may agree with the lawyer’s decision to appeal the verdict in cassation or refuse to file a complaint

Protecting your interests in cassation proceedings the convict, his legal representative or relative has the right to entrust a defense lawyer, whose participation in the court of second instance is not obligatory. The new Code of Criminal Procedure of the Russian Federation gives the parties, including the lawyer, the right to petition for a direct examination of evidence by the court of cassation (part 4 of article 377 of the Code of Criminal Procedure of the Russian Federation).

The law granted the convict and his defense counsel the right to petition for a supervisory review of court decisions that have entered into legal force (part 1 of article 402 of the Code of Criminal Procedure of the Russian Federation). Their petitions are called supervisory complaints, the form and content of which must comply with the requirements established by law (Articles 375, 404 of the Code of Criminal Procedure).

Comprehending the content of the supervisory complaint, the defender is called upon to strive to fully express his attitude to the verdict, determination, decision in terms of their legality, validity and fairness. It should not be limited to justifying a single violation of criminal procedure or incorrect application of substantive laws.

In fact, many verdicts and rulings of the cassation instances do not reflect the requirements of justice placed on them, and the absence of these qualities in court decisions gives the lawyer the right to raise the issue of changing them in the order of supervision.

The supervisory appeal of a lawyer is considered by the supervisory court in a court session, in which the convicted, acquitted, their defense lawyers participate, if they have filed a petition to this effect (part 2 of article 407 of the Code of Criminal Procedure of the Russian Federation).

In the cassation and supervisory appeals, as well as in the speech in the cassation and supervisory instances, the position of the lawyer, his demands must be clear and precise: cancel or change, sentence, ruling, decision. Alternative requirements are unacceptable in cassation and supervisory appeals, as well as in the speeches of a lawyer in the courts of cassation and supervisory instances.

12. Participation of defense counsel at the stage of execution of the sentence

The Constitution of the Russian Federation establishes that a detainee, taken into custody, accused of committing a crime has the right to use the assistance of a lawyer (defender) from the moment of detention, detention or charge (Article 48). According to paragraph 8 of Art. 12 of the Criminal Executive Code of the Russian Federation (PEC RF), in order to receive legal assistance, convicts can use the services of lawyers, as well as other persons entitled to provide such assistance.

Legal assistance to convicts, as a rule, is provided by lawyers, but it can also be provided by other persons entitled to such assistance: representatives of the trade union (trade union) or other public organization in which the convict was a member, close relatives, legal representatives, guardians of the convict.

In accordance with Art. 15 of the Penal Code of the Russian Federation, convicts can send proposals, statements, petitions and complaints, stated in oral and written forms, in the administration of institutions and bodies executing punishments.

Bodies and officials to whom proposals, applications and complaints of convicts are sent must consider them within the time limits established by the legislation of the Russian Federation and bring the decisions made to the attention of convicts.

In accordance with paragraph. "in" Article. 89 of the Constitution of the Russian Federation, the right to pardon is vested in the President of the Russian Federation, who has the right to issue appropriate decrees.

A pardon is a mitigation of the punishment of a convicted person. For the first time in the history of Russian legislation, the Criminal Code of the Russian Federation (Article 85) regulates types of mitigation of the fate of a convicted person, which are possible by an act of pardon.

The Criminal Procedure Code of the Russian Federation establishes a general rule: issues related to the execution of a sentence are considered by the court on the proposal of the institution or body executing the sentence. At the same time, in some cases, the convict himself can take the initiative.

The convicted person participating in the court session and the defense counsel have the right to get acquainted with the materials submitted to the court, participate in their consideration, file motions and challenges, give explanations, submit documents, i.e. they enjoy all the rights of a party to the trial.

The ruling may be appealed on general grounds. The right to appeal a judge's decision belongs to convicted person, who filed the petition, his defender, who can send cassation appeals, or the prosecutor, who has the right to send a cassation presentation. The deadline for filing a complaint or submission against a court decision is determined by Art. 356 of the Code of Criminal Procedure of the Russian Federation and amounts to 10 days from the date of the decree. If the convict wishing to appeal against the decision is in custody, this period shall be calculated from the moment of handing him a copy of the decision.

13. Lawyer in civil proceedings

The powers of a lawyer participating as a representative of the principal in civil proceedings are regulated by procedural legislation. At the same time, the law also paid attention to the regulation of the rights and obligations of a lawyer, that is, the most important components of his legal status.

Features of the participation of a representative lawyer in civil proceedings are:

1) carries out civil procedure activities as a professional lawyer with sufficient knowledge and experience;

2) clearly knows his role as a representative in civil proceedings in general and in a specific civil case in particular;

3) has a wide arsenal of measures, means and methods provided by law for the performance of their professional tasks and professional duties;

4) is well informed about the types and extent of his responsibility for the quality, timeliness and efficiency of procedural activities on behalf of a party, third parties in civil proceedings.

In accordance with the new provisions of procedural legislation, the rights and obligations of a representative have been expanded in accordance with the public law roles performed. This trend can be traced both in the Law on the Bar and in the new Code of Civil Procedure of the Russian Federation.

The attorney-representative has the right to perform on behalf of the represented all the procedural actions provided for in paragraph 1 of Art. 35 Code of Civil Procedure of the Russian Federation. However, the power of attorney should specifically stipulate such powers of the representative as the right of the representative to sign the statement of claim, present it to the court, refer the dispute to arbitration, file a counterclaim, complete or partial waiver of claims, reduce their size, recognize the claim, changing the subject matter or grounds for a claim, concluding a settlement agreement, transferring powers to another person (transfer), appealing a court decision, presenting a writ of execution for collection, receiving property or money awarded (Article 54 of the Code of Civil Procedure of the Russian Federation). The representative, as well as the persons participating in the case, must use all the procedural rights belonging to him in good faith (clause 1, article 35 of the Code of Civil Procedure of the Russian Federation).

The role and place of the attorney-representative in civil proceedings outlined by the Code of Civil Procedure of the Russian Federation, as well as his ability to influence the resolution of the dispute, allow us to see a new trend: the consistent implementation of the idea of professionalism in the consideration and resolution of civil cases. Normatively, this idea is expressed in strengthening the role of the courts, the lawyer and the prosecutor (Articles 1-4, 11, 12, 22-25, 45, 50 of the Code of Civil Procedure of the Russian Federation). This trend is fully consistent with the constitutional principle of the right to qualified legal assistance throughout the civil proceedings.

14. Strategy and tactics of the work of a lawyer at the pre-trial stages of resolving civil disputes

One of the types of legal assistance provided by a lawyer is giving advice и references on legal issues in oral and written form (clause 2, article 2 of the Law on the Bar). The lawyer needs to establish psychological contact with the client within a short time, understand the essence of his claims and provide qualified legal assistance.

Preparation of a representative lawyer for participation in a case in the court of first instance, it takes place at the stage of preparing the case for trial and is subordinated to the general tasks of this stage of legal proceedings: the factual circumstances that are important for the correct resolution of the case are clarified; the law to be followed is determined and the legal relations of the parties are established; the issue of other participants in the process is resolved; the necessary evidence is presented by the persons participating in the case (Article 148 of the Code of Civil Procedure of the Russian Federation).

The activity of a lawyer depends on which side he represents in the process.

Plaintiff's attorney is obliged to transfer to the defendant copies of evidence substantiating the factual grounds for the claim; file petitions before the judge to demand evidence that he cannot obtain on his own without the help of the court.

Defendant's attorney clarifies the claims of the plaintiff and the actual grounds for these claims; presents to the plaintiff or his representative and the court objections in writing regarding the claims; transfers to the plaintiff or his representative and to the court evidence substantiating objections to the claim; submits petitions to the judge for the reclamation of evidence that he cannot obtain on his own without the help of the court (Article 149 of the Code of Civil Procedure of the Russian Federation)

At the heart of all this activity of a representative lawyer is Art. 56 Code of Civil Procedure of the Russian Federation, which determines that the party must prove the circumstances to which it refers.

When preparing the case for trial, the attorney-representative explains to the principal the procedure for considering the case in court, the procedural rights and obligations of the client. In addition, it is necessary to give certain recommendations regarding behavior in court, as well as what should be said in the course of giving explanations, when answering questions from the court and other persons involved in the case, studies the relevant judicial practice.

Preparation of a lawyer for the conduct of the case is completed preliminary court session (Art. 152 Code of Civil Procedure of the Russian Federation). The parties in the preliminary court session, therefore, and their representatives have the right to present evidence, argue, and file motions. In a preliminary court session, the objection of the defendant regarding the absence by the plaintiff of the limitation period for the protection of the right and the period established by federal law for applying to the court may be considered.

15. Activities of a defense counsel in civil proceedings

The author A.M. Palkhovsky noted: “The lawyer in the matter of constructing and conducting the process must play the role of an architect... The role of masons and plasterers, of course, must be taken on by other persons.”

Any civil process, in his opinion, requires:

1) a clear and completely correct idea of the existence and violation of the right;

2) evidence and violation of this right;

3) presentation of this evidence to the court;

4) defense of their arguments and refutation of the arguments of the opposing party before the court.

These are the four periods through which the civil process passes.

Trial is the central stage of civil litigation. It is characterized by an oral form, the immediacy of the study of evidence and the continuity of the process, with the exception of the time appointed for rest (Article 157 of the Code of Civil Procedure of the Russian Federation).

After the announcement of the composition of the court in accordance with Art. 164 of the Code of Civil Procedure, a representative lawyer has the right to challenge a justice of the peace or a judge, a prosecutor, a secretary of a court session, an expert, a specialist, a translator (Articles 16-18 of the Code of Civil Procedure of the Russian Federation).

The persons participating in the case shall have the right to file motions related to the proceedings of the case. They are resolved by the court after hearing the opinions of other persons participating in the case.

After the report of the case, the court hears the explanations of the parties.

Then the court establishes the sequence of examination of the evidence and proceeds to the next stage of the trial of the case.

Judicial Debate consist of speeches of persons participating in the case, their representatives. The plaintiff and his representative speak first, then the defendant and his representative.

In his speech, the lawyer must express the legal position on the case agreed with the principal, analyze and evaluate the evidence examined by the court. He indicates which circumstances of the case, in his opinion, can be considered proven, and which circumstances have not been confirmed. In conclusion, the representative expresses an opinion about what kind of legal relationship between the parties in question and what law should be followed.

If necessary, use and right to reply, to respond to remarks from persons participating in the case and to give these statements a comprehensive assessment.

In accordance with Art. 231 of the Code of Civil Procedure of the Russian Federation, the persons participating in the case, their representative have the right to familiarize themselves with the minutes of the court session and within 5 days from the date of its signing, submit comments in writing, pointing out the inaccuracies and (or) its incompleteness.

16. Participation of a lawyer in proving in a civil case

In science, there are different opinions regarding the status of a lawyer in civil proceedings. In particular, some scholars agree that a representative lawyer is an independent subject of proof, and not a person who does not participate in the case, has neither rights nor obligations to prove, does not have any independent powers.

The legislator also assigns the right to provide evidence to the parties and other participants in the process, to which he does not include a representative. However, by virtue of a power of attorney issued by the plaintiff or defendant, the lawyer has the right to represent the interests of the client, and, therefore, to take part in the proof as an independent subject expressing the opinion of one of the parties. At the same time, the lawyer has special knowledge that allows him to more professionally carry out the functions assigned to him.

Evidence in the case information about the facts obtained in the manner prescribed by law, on the basis of which the court establishes the presence or absence of circumstances substantiating the claims and objections of the parties, other circumstances that are important for the correct consideration and resolution of the case.

The representative lawyer must follow the testimony of witnesses, ask questions aimed at extracting the necessary facts; participate in the study of written and material evidence. The study involves familiarization with these documents, their analysis, establishing links between individual evidence. A lawyer-representative participates in the interrogation of experts and specialists, if they were involved in the case. The court is obliged to directly examine the evidence. Therefore, if it is impossible to get acquainted with the evidence due to objective reasons in the courtroom, their examination and research is carried out at the location.

At the same time, the activities of the representative must comply with the requirements of the law, be professional and qualified, and not violate the norms of lawyer ethics. During interrogations, a lawyer is obliged to take an active position, but under no circumstances be rude to the interrogated person, show respect for his personality. You can not ask leading questions, as well as unplanned ones, the answer to which can harm the principal.

Examining the Evidence includes their evaluation. As part of the assessment of evidence, it is necessary to identify the relevance, admissibility of evidence, their reliability, sufficiency and the presence of interconnection. A representative lawyer, evaluating evidence in a civil case, is guided by his inner conviction, the basis of which is confidence in the need to fulfill his constitutional duty - to protect the rights and legitimate interests of the person who applied for legal assistance.

17. Conditions for the participation of a lawyer in an appeal against decisions in civil cases

The decision rendered by the justice of the peace may be appealed on appeal by the parties and other persons participating in the case to the relevant district court through the justice of the peace within 10 days.

The basis for filing an appeal is a violation or incorrect application by the justice of the peace of the norms of substantive and procedural law in the administration of justice in civil cases.

Features of the appeal proceedings are that the court of appeal, considering the case according to the rules of proceedings in the court of first instance, has the right to establish new facts and examine new evidence (Article 327 of the Code of Civil Procedure of the Russian Federation).

On the decisions of other courts, taken at first instance, the parties and other persons participating in the case may file cassation appeals, with the exception of decisions of justices of the peace, within 10 days from the date of the relevant decision.

At the end of the consideration of the case in the court of first instance, the attorney-representative must prevent the entry into force of illegal and unreasonable decisions and rulings in civil cases. He is obliged to contribute to the restoration of violated or disputed rights, freedoms and legitimate interests of citizens and thereby strengthen the rule of law and the rule of law, the formation of a respectful attitude towards law and court.

Such activities of a representative lawyer will determine the content, direction and nature of the requirements set forth subsequently in the complaint.

Based on the actual circumstances and materials of the case, substantive and procedural laws, in accordance with internal conviction and legal consciousness, the complaint assesses the court decision as an act of justice, expresses an opinion about its legality and validity.

The demands of a person addressed to the cassation instance must be clear and precise, motivated and legal.

A court decision that has entered into legal force, with the exception of court decisions of the Presidium of the Supreme Court of the Russian Federation, is filed a complaint addressed to the relevant official in the supervisory proceedings.

Grounds for filing a complaint in the order of supervision is a violation or incorrect application of the norms of substantive and procedural law (Articles 363, 364 of the Code of Civil Procedure of the Russian Federation).

Content of the complaint must comply with Art. 378 Code of Civil Procedure of the Russian Federation and clearly indicate what kind of violation was committed by the courts that previously considered the case; how it affected the court decision, which entered into force; a statement of the applicant's request.

The professionalism and qualifications of a representative lawyer largely contribute to the proper preparation of appeals, cassation and supervisory complaints and to strengthening the authority of a lawyer corporation providing legal assistance.

18. The work of a lawyer in the stage of enforcement proceedings

For the first time in the legislation regulating enforcement proceedings (Federal Law of July 21, 1997 No. 119 FZ "On Enforcement Proceedings"), the rules governing the participation of a representative in enforcement proceedings are fixed.

Most often, representatives in enforcement proceedings are involved in order to obtain qualified legal assistance in the process of executing a writ of execution.

In certain cases, the involvement of representatives in enforcement proceedings is mandatory, since some categories of citizens cannot personally exercise their rights and obligations (minors, incapacitated or partially capable, recognized as such in the manner prescribed by law).

Entities also cannot directly participate in enforcement proceedings, but act through their bodies or officials, or through representatives of these bodies and officials.

From the content of part 2 of Art. 33 it follows that bailiff persons representing various bodies or organizations must check the availability of documents confirming their official or official position (service certificates, etc.).

Article 33 of the said Law provides that claimant or debtor may participate in enforcement proceedings together with their representatives. The parallel participation of these persons is often found in practice and provides more complete protection of the rights and interests of the parties in enforcement proceedings.

Article 35 of the Federal Law of the Russian Federation "On Enforcement Proceedings" is devoted to determining the scope of powers of a representative, and, accordingly, a lawyer, if he acts as such, in enforcement proceedings. Based on the current legislation, the representative has the same scope of rights and obligations as the represented.

In Part 2 of Article 35, the legislator fixed such administrative actions of the recoverer and the debtor in enforcement proceedings, the right to commit which the representative must be specifically stipulated in a power of attorney or other document confirming his authority.

The rights in the interests of the person represented to present or withdraw a writ of execution, transfer powers to another person (i.e., make a transfer), appeal against the actions (inaction) of the bailiff, receive the property (including money) awarded under the writ of execution must be indicated in the power of attorney .

In all cases, when a representative is involved in the enforcement proceedings, the bailiff is obliged to check the scope of his powers.

19. Participation of a lawyer in the arbitration process in the court of first instance

When considering cases in the arbitration court, all persons participating in the case may have their representatives, in accordance with Art. 40 of the Arbitration Procedure Code of the Russian Federation dated July 24, 2002 No. 95 FZ (Arbitration Procedure Code of the Russian Federation).

Judicial representation has the right to carry out only a capable person, if at the same time it does not belong to the circle of persons who, in accordance with Art. 60 of the Arbitration Procedure Code of the Russian Federation cannot be representatives in an arbitration court. The authority of a representative to conduct a case in an arbitration court must be formalized and confirmed in accordance with Art. 61 APC RF. The powers of a lawyer to conduct cases in an arbitration court are certified in accordance with the Federal Law "On Advocacy and the Bar in the Russian Federation". The Arbitration Procedure Code of the Russian Federation does not contain mandatory prescriptions on issuing a warrant for the powers of a lawyer to conduct a case in an arbitration court on behalf of the principal. Thus, an attorney in an arbitration process may represent a principal on the basis of either a warrant or a power of attorney.

The judicial representative, executing the order of his principal in court, must, by his activity, contribute to the resolution of the problems of legal proceedings in arbitration courts, pursuing the protection of the violated or contested rights, freedoms and legitimate interests of his principal as the main goal of his activity. In addition, the lawyer must assist the principal in exercising the procedural rights granted to him and the procedural duties assigned to him. This is the main difference between judicial representation and civil legal representation, the main purpose of which is the direct creation, change and termination of the civil rights and obligations of the represented.

Judicial representation as an institution of arbitration procedural law is usually divided into types depending on the grounds for its occurrence. As a general rule, distinguish voluntary (or contractual) representation, in which the person participating in the case independently elects his representative to conduct the case in court, as a rule, giving the representative the appropriate powers on the basis of an agreement on the provision of legal assistance (Article 25 of the Federal Law “On Advocacy and the Bar in the Russian Federation”) , contract of assignment or agency contract, and legal representationwhen a person is a judicial representative by virtue of a direct prescription of the law.

Analysis of the norms contained in Ch. 6 of the Arbitration Procedure Code of the Russian Federation, in their systemic connection with other provisions of the Code, indicates that representation is possible at any stage of consideration of a case by an arbitration court of the first, appellate, cassation or supervisory instances and in any category of cases referred by law to the jurisdiction of the arbitration court. In addition, the Arbitration Procedure Code of the Russian Federation does not contain restrictions on the number of representatives of each of the persons participating in the case.

20. Participation of a representative in the appeal, cassation and supervisory instances of the arbitration process

Arbitration court decisions that have not entered into legal force are subject to appeal.. An appeal may be filed by persons participating in the case. Unlike the persons participating in the case, their representatives (including lawyers) do not have an independent right to appeal to the appellate court. An appeal can take place only on instructions and on the basis of a power of attorney from the persons participating in the case, other persons entitled to appeal judicial acts.

An essential feature of the review of the case in the appellate instance is retrial.

The lawyer at this stage must take into account that it is not advisable to state new requirements in the appeal, since they cannot be the subject of proceedings and deliberately distract the court of appeal from the analysis of those problems that remained relevant for the applicant of the complaint after the decision was made by the court of first instance.

The persons participating in the case have the right to appeal against the decision of the court in the cassation procedure. This is possible only in relation to the acts of the courts of the first and appellate instances located in the arbitration districts. Decisions of the Supreme Arbitration Court of the Russian Federation in accordance with the generally established procedure are not subject to cassation appeal.

An interested person may file a complaint with the court of cassation, bypassing the court of appeal, and in the cases established by law (Articles 195, 234, 240, 245 of the Arbitration Procedure Code of the Russian Federation), the law does not provide for an appeal against judicial acts of first instance to the court of appeal.

The revision of judicial acts that have entered into legal force, in the exercise of supervision, is carried out exclusively by the Supreme Arbitration Court of the Russian Federation. A lawyer must take into account that in the supervisory court a judicial act that has entered into legal force can only be challenged. If an appeal against a judicial act entails consideration of the complaint (appeal, cassation) on the merits, then its contestation is connected with a preliminary consideration of the issue of the presence or absence of grounds for initiating supervisory proceedings.

In order to streamline the appeal to the Supreme Arbitration Court of the Russian Federation with applications and submissions by way of supervision, a three-month period has been established from the date of entry into force of the last judicial act adopted in the case.

Supervisory court is always exceptional. Unlike other courts, in which the arbitration court determines the sequence of the process, taking into account the opinions of the persons participating in the case (Article 153 of the APC of the Russian Federation), in the supervisory court this procedure is predetermined by law. In this case, the lawyer speaks with justification of his position only after hearing the judge-rapporteur as a representative of a person.

21. Participation of a lawyer in constitutional proceedings

The Constitutional Court of the Russian Federation is a judicial body of constitutional control, independently and independently exercising judicial power through constitutional proceedings.

Constitutional jurisprudence has a number of features:

1) The Constitutional Court is engaged in establishing the actual circumstances of the case only to the extent that they can affect the assessment of the constitutionality of the challenged law or its individual provisions;

2) the constitutional process, unlike other types of processes, is rather fleeting. There is only one instance. Decisions of the Constitutional Court of the Russian Federation are final and not subject to appeal or protest. And therefore, the lawyer is deprived of the opportunity to leave any arguments for the future or subsequently supplement them with something, it is necessary to state everything to the court at once;

3) the Constitutional Court of the Russian Federation does not have a prescribed procedure for the execution of its decisions, i.e. there is no mechanism for forcing state bodies and their officials to comply with these decisions if they do not voluntarily obey it. There are frequent cases of repeated appeals to the Constitutional Court of the Russian Federation on the same issue, since the first decision was not implemented by anyone;

4) the protection of constitutional rights and freedoms in the constitutional process is realized not only through upholding the rights of a particular person, but in the form of protecting the rights and freedoms of all persons in relation to whom the contested legal act can be applied, i.e. public interests are always protected.

At the stage of preparing the case for hearing the lawyer needs to choose a variant of the position on the case, select arguments to substantiate it, determine the circle of possible witnesses, specialists, experts to be summoned to court, determine the list of documents that will need to be found and submitted to the court.

The lawyer needs to make sure that there are no circumstances preventing the consideration of the case in the Constitutional Court. (Clause 1, Part 2, Article 40 of the Federal Law No. 21 of July 1994, 1 - Federal Law on the Constitutional Court of the Russian Federation).

In the absence of circumstances preventing the consideration of the complaint in the Constitutional Court of the Russian Federation, the lawyer must make sure that the complaint is admissible and there are legal grounds for sending it to the Constitutional Court of the Russian Federation.

In accordance with Part 2 of Art. 36 of the Law on the Constitutional Court of the Russian Federation, the basis for considering a case in constitutional justice is the revealed uncertainty as to whether the Constitution of the Russian Federation complies with a law or other legal act, an agreement between state authorities of the Federation and its subjects and other issues of consideration that are included in the concept of the Constitutional Court of the Russian Federation. The applicant and his lawyer must remember that, in accordance with Art. 37 of the Law on the Constitutional Court of the Russian Federation, it is necessary to indicate in the appeal the specific grounds for the appeal and your position on this issue.

22. Participation of a lawyer in a meeting of the Constitutional Court of the Russian Federation and in legal proceedings to clarify the decision

constitutional process no less tense and internally filled with conflicts than any other. Therefore, a lawyer must prepare carefully for the process, since the decision will apply not only to his client, but also to a large number of other people.

At the court session it is necessary to strictly observe the Rules of the Constitutional Court.

If there are several representatives in the process, then a more experienced lawyer should take over the coordination functions. The roles of the participants must be defined in advance.

The lawyer must control the completeness of the coverage of the problem. An application for disqualification of a judge, which is possible at any stage, requires special delicacy. This part of the task is best taken on by a lawyer. It must be remembered that in the Constitutional Court of the Russian Federation it is impossible to express no confidence in the entire composition of the court. There is no other Constitutional Court in Russia. You can express no confidence only in some judge on the grounds strictly listed in the law. Unlike other courts, the Constitutional Court may have another reason - the participation of the judge in the adoption of the disputed act.

In the constitutional process, there is a speech by the parties, a statement of petitions, a final speech by a lawyer. The difference is that after the final decision on the case has been made or a decision has been made to refuse to accept the issue for consideration, the lawyer can apply for an official clarification of the court act if its essence as a whole or individual provisions is not clear.

Decisions made by the Constitutional Court of the Russian Federation are referred to as resolution, conclusion, definition.

The decision of the Constitutional Court of the Russian Federation is considered adopted if the majority of the judges participating in the voting voted for it, unless otherwise provided by federal constitutional law. Decisions of the Constitutional Court of the Russian Federation are proclaimed in full immediately after they are signed.

Resolutions and opinions of the Constitutional Court of the Russian Federation not later than within two weeks from the date of their signing are sent: by the judges of the Constitutional Court of the Russian Federation, the parties, the President of the Russian Federation, the State Duma, the Government, the Commissioner for Human Rights, the Supreme Court, the Supreme Arbitration Court, the Prosecutor General, the Minister of Justice.

The decision of the Constitutional Court of the Russian Federation is final, not subject to appeal and enters into force immediately after its announcement. Acts or separate provisions recognized as unconstitutional lose their force; recognized as inconsistent with the Constitution of the Russian Federation, international treaties of the Russian Federation that have not entered into force are not subject to entry into force and application (part 6 of article 125 of the Constitution of the Russian Federation).

23. The main areas of activity of a lawyer in administrative proceedings

The legal basis for the participation of a lawyer in the process of proceedings in cases of an administrative offense is given in the Constitution of the Russian Federation (Article 48) and in the Code of Administrative Offenses of the Russian Federation (Article 25.5).

A lawyer or other person is allowed to participate in the proceedings on an administrative offense as a defense counsel or representative. The powers of a lawyer are certified by a warrant issued by a legal advisory office.

Powers of another personproviding legal assistance are certified by a power of attorney issued in accordance with the law.

The defense counsel and the representative are allowed to participate in the proceedings on the case of an administrative offense from the moment of drawing up the protocol on an administrative offense. In the case of administrative detention of an individual in connection with an administrative offense, a defense counsel is allowed from the moment of administrative detention.

A defense counsel and a representative admitted to participate in proceedings on a case of an administrative offense have the right to get acquainted with all the materials of the case, present evidence, file motions and challenges, participate in the consideration of the case, appeal against the application of measures to ensure the proceedings in the case, the decision on the case, use other procedural rights under the law.

When examining material evidence the lawyer must take an active position, especially he must be attentive when studying the documents.

Unfortunately, all actions under the Code of Administrative Offenses are carried out by authorized bodies. And the right to conduct their own investigation by lawyers is not spelled out in the Code.

The case on an administrative offense is considered within fifteen days. from the date of receipt by the judge, body, official authorized to consider the case, the protocol on an administrative offense and other materials of the case.

When the consideration of the case on an administrative offense is continued, a protocol on an administrative offense is announced, and, if necessary, other materials of the case. Explanations of a natural person or a legal representative of a legal entity in relation to whom proceedings are being conducted on an administrative offense are heard, testimony of other persons participating in the proceedings, explanations of a specialist and an expert’s opinion, other evidence is examined, and in the case of the participation of a prosecutor in the consideration of the case, his conclusion. The law does not provide a lawyer with such a right, i.e. there are no debates between the parties.

Based on the results of the consideration of a case on an administrative offense, a decision may be issued:

1) on imposing an administrative penalty;

2) on termination of proceedings on the case of an administrative offence.

24. Appeal against decisions on an administrative offense

When appealing a decision on an administrative offense, a lawyer must take into account jurisdiction. The relevant rules are established by art. 30.1 of the Code of Administrative Offenses of the Russian Federation.

Based on the results of consideration of the complaint, a decision is made.

The decision on the case of an administrative offense committed by a legal entity or a person engaged in entrepreneurial activities without forming a legal entity is appealed to an arbitration court in accordance with the arbitration procedural legislation.

A complaint against a decision in a case on an administrative offense is filed with the judge, body, official who issued the decision on the case and who are obliged to send it with all the materials of the case to the appropriate court, higher body, higher official within 3 days from the date of receipt of the complaint.

A complaint against a judge's decision to impose an administrative penalty in the form of administrative arrest shall be sent to a higher court on the day it is received.

A complaint can be filed directly with a court, a higher authority, a higher official authorized to consider it.

If the consideration of the complaint does not fall within the competence of the judge, official who appealed against the decision in the case of an administrative offense, the complaint shall be sent for consideration according to jurisdiction within 3 days.

The law establishes time limits for appealing against a case on an administrative offense A complaint against a decision on a case on an administrative offense may be filed within 10 days from the date of delivery or receipt of a copy of the decision.

An appeal against a decision in a case concerning an administrative offense is subject to consideration within ten days from the date of its receipt with all the materials of the case to the court, body, official authorized to consider the appeal.

A complaint against a decision on administrative arrest is subject to consideration within XNUMX hours from the date of its filing, if the person brought to administrative responsibility is serving an administrative arrest.

Decision not entered into legal force in the case of an administrative offense and (or) subsequent decisions of higher authorities on complaints against this decision can be appealed in accordance with Art. 30.10 of the Code of Administrative Offenses only by the prosecutor. Thus, the lawyer can send a complaint to the prosecutor, who, if he considers the arguments convincing, can appeal against the decision. This generally narrows the right to protection on the part of those brought to administrative responsibility, making it dependent on a state official, such as a prosecutor.

25. The concept and types of representation in tax legal relations

With the adoption of the Tax Code of the Russian Federation, the rights of the taxpayer have significantly expanded, in particular, the right to entrust the representation of their interests through authorized representatives, both legal entities and individuals, has appeared.

A vast field of activity has opened up for the advocacy in this area.

In order to represent a person in tax legal relations, a lawyer must conclude a civil law agreement with the taxpayer on representing his interests as an authorized representative.

Services related to representing the interests of the customer, provided by a lawyer as an authorized representative, can be carried out in the form of:

1) legal analysis of tax situations that arise for the client in the course of his financial and economic activities;

2) giving advice on taxation issues;

3) optimization of taxation by choosing the appropriate types of contractual relations with counterparties (both when concluding a contract and by changing the terms of already concluded contracts), the most advantageous determination of the composition of costs included in the cost, as well as by determining accounting methods that allow legally reduce the taxable base, or in other ways;

4) protecting and representing the interests of the customer (client) in relations with tax authorities (customs authorities, authorities of state non-budgetary funds), other participants in relations regulated by the legislation on taxes and fees.

This is a short and far from complete list of services that a lawyer can offer entrepreneurs in this area. When carrying out this activity, it is necessary to simultaneously involve for consultations a specialist accountant who is knowledgeable in matters of taxation, or an auditor.

The powers of representatives are formalized by a power of attorney issued in the manner prescribed by the civil legislation of the Russian Federation (clause 3, article 29 of the Tax Code of the Russian Federation). Between the taxpayer (tax agent) and his representative, there are not tax, but civil law relations.

Power of attorney issued to the representative of the taxpayer - an individual, must be certified by a notary or in a form equivalent to a notarized in accordance with the procedure established by paragraph 3 of Art. 185 of the Civil Code of the Russian Federation.

To represent the interests of taxpaying organizations, a notarized power of attorney is not required. In this case, the power of attorney must be signed by the head of the relevant legal entity (another person authorized to do so by its constituent documents). The power of attorney must be affixed with the seal of the trusting organization.

26. Legal services for drafting contracts and transaction support, claim work

For the implementation of this type of service, it is necessary to competently prepare draft contracts and organize legal support for the procedure for their execution by the contracting parties and maintaining the documentation necessary for this (as an annex to the contracts). In this case, you need the help of a qualified lawyer. A lawyer is the most sophisticated person in such matters.

First of all, when making transactions, it is necessary to pay attention to whether legal entities of a certain organizational and legal form have the right to conclude certain transactions and whether they have the right to carry out the types of activities provided for in the contract being concluded.

Legislation and regulations require licenses to engage in certain activities and certain transactions.

When concluding contracts, attention should be paid to the powers of the counterparty's representatives to conclude this transaction and their correct execution.

The question often arises whether the official had the right to conclude the transaction, whether this person performed certain official duties at the time of the transaction, whether the transaction requires the consent of other management bodies of the legal entity (general meeting of shareholders (participants), board of directors). To this end, it is necessary to request constituent documents from counterparties, from which it can be concluded which officials are entitled to conclude transactions without a power of attorney and whether the consent of other counterparty management bodies is required to conclude a transaction.

An important factor in the execution of the contract is place and procedure for consideration of legal disputesrelated to the conclusion and execution of an agreement, which will ensure the most effective protection of the client’s interests.

When preparing draft agreements, it is also necessary to take into account the peculiarities of not only civil, but also other branches of law, for example, legislation on currency regulation, tax legislation, and the requirements of regulations governing accounting procedures.

When concluding a transaction, special attention should be paid to the possibility of optimizing taxation.

Close attention should be paid to the procedure for fulfilling the terms of the contract, i.e., the procedure for boundary control (terms, time and place of drawing up acts of acceptance and transfer of goods or work, reflection of the quality and quantity of goods received, etc.).

Engaging a lawyer to participate in negotiations with the client’s counterparties on the issue of concluding an agreement (agreement), the procedure for its implementation, and other things allows the client to receive legal assistance directly and immediately, which will help to avoid mistakes and the need to correct them.

The lawyer involved in the negotiations must familiarize himself with the available documentation in advance, carry out its legal analysis and, on its basis, provide his proposals.

27. Representation in arbitration and international commercial arbitration

Modern Russian legislation on the arbitration court was formed under the influence of the UNCITRAL Model Law "On International Commercial Arbitration" (adopted on June 21, 1985 at the 18th annual session of the UN Commission on International Trade Law (UNCITRAL)) based on the convergence of the regulation of the organization and activities of all arbitration courts on the basis of principles and norms originally intended for international commercial arbitration.

Legitimacy of arbitration is based on the constitutionally enshrined "right of freedom of action of citizens and their private autonomy." The right of everyone to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law is proclaimed in Part 1 of Art. 34 of the Constitution of the Russian Federation. According to Part 2 of Art. 45 of the Constitution of the Russian Federation: "Everyone has the right to protect their rights and freedoms by all means not prohibited by law."

The UNCITRAL Model Law "On International Commercial Arbitration" and the following Law of the Russian Federation of July 7, 1993 No. 5338-I "On International Commercial Arbitration" are subject to arbitration proceedings (process, procedure) carried out in any arbitration court, including arbitration proceedings organized by a permanent arbitration court.

The developers of the UNCITRAL Model Law "On International Commercial Arbitration", which formed the basis of the Russian law of the same name, gave the term "arbitration" a meaning that included:

1) arbitration agreement;

2) preparation and conduct of arbitral proceedings and arbitral awards.

In the Federal Law of July 24, 2002 No. 102-FZ "On Arbitration Courts in the Russian Federation" The term "arbitral tribunal" is used in two main meanings:

1) as a general name for the institution of an arbitration court, which has two types - a permanent arbitration court and an arbitration court for resolving a specific dispute (an arbitration court for resolving a specific dispute);

2) in relation to the composition of the arbitral tribunal, elected (appointed) to resolve a specific dispute in an arbitral tribunal of any of its two types.

Thus, the rules of arbitration proceedings are to be determined using not only the provisions of Ch. V "Arbitration", and all legal provisions on the arbitration procedure. At the same time, it should be borne in mind that the rules of arbitration in a permanent arbitration court and in an arbitration court for resolving a specific dispute are regulated in the same way, but often this is done in the provisions of the Federal Law "On Arbitration Courts in the Russian Federation" addressed to each of them. At the same time, terminological unity is not maintained, and the meaning of the term "arbitral tribunal" should be determined each time depending on the context.

28. Representation before the European Court

For the protection of human rights and freedoms, of considerable practical importance is Rules of the Court defining the procedure for the implementation of complaints. It is difficult for lawyers, applicants, and representatives of the respondent state to do without understanding the significance of the Regulations.

According to Rule 35 of the Rules of the European Court of Human Rights, the representation of the High Contracting Parties is carried out by official authorized persons who are entitled to the assistance of lawyers and advisers.

The representative of the applicant, acting in accordance with paragraphs 2 and 3 of Rule 36 of the Rules, shall be a lawyer admitted to the practice of law in any of the High Contracting Parties and permanently resident in the territory of one of them, or any other person approved by the President of the Chamber.

In exceptional circumstances and at any stage of the proceedings, the President of the Chamber, if he considers that the circumstances or the actions of a lawyer or other person justify it, may indicate that the person concerned can no longer represent or assist the applicant. In this case, the applicant is ordered to find another representative.

Counsel or other approved representative, or the applicant himself, who wishes to be allowed to represent himself in a case, must have a sufficient command of one of the official languages of the Court, even if he has received such permission.

The difficulty lies in the fact that the process of resolving disputes in the European Court differs from the system that exists in Russia. In particular, the features are characteristic of the composition of the Court, the parties, other persons participating in the case, etc.

Order in the Courtroom is ensured by the Chairman of the Chamber. He may, if a representative of a party makes an offensive, frivolous, dishonest, misleading or lengthy argument, remove such representative from the proceedings, refuse to adduce the entire or part of the argument, or take any other action he deems appropriate.

Legal assistance in proceedings before the European Court may be provided free of charge. This provision is regulated by the Rules of Ch. 10 of the Regulations. The President of the Chamber has the right, either on the basis of an application from the applicant who filed a complaint in accordance with Art. 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms, or, on its own initiative, provide the applicant with legal assistance related to the conduct of the case free of charge. In this case, lawyers and other persons appointed in accordance with paragraph 4 of Rule 36 shall be paid remuneration. It may, in appropriate cases, be paid to more than one such representative. The amounts intended for payment of legal assistance to the applicant may include not only the remuneration of representatives, but also travel and accommodation expenses and other necessary expenses of the applicant or appointed representative.

29. The emergence and development of notaries in the pre-Soviet period

Word "notary" comes from the Latin "notarius", which means "scribe", "scribe", "secretary", "stenographer", "clerk". In ancient Rome, this was the name given to slaves who kept business correspondence with their masters.

In the XV-XVII centuries. in Moscow, the written form of the contract was handled by clerks, who drew up written contracts characteristic of that time: "purchasing fortress", record, loan bondage, etc.

In the XV1 century. they united in the so-called artels, headed by the headman. The number of people in them, depending on the population of a particular city, varied from 15 to 24. Contractual letters drawn up by them were subject to mandatory registration in the Armory. Their activities were supervised by the Order of Serf Affairs.

On April 14, 1866, Emperor Alexander II approved the Temporary Regulations on the notary part, which received the force of law in 1875 and extended to the former Kingdom of Poland, and later to the Baltic provinces. It became part of the Judicial Statutes (Code of Laws, vol. XVI^.1).

Candidates who had reached the age of 21, citizens of the Russian Empire, who had knowledge in the field of civil law, statutes and forms of notarial proceedings were appointed to the position of notaries. Before being appointed to office, notaries made bail, the amount of which in the capital city amounted to 10 rubles, in the provincial -6000 rubles, in county townswhere there were district courts - 4000 rubles, in other cities - 2000 rubles. This pledge was aimed at ensuring the property liability of the notary for errors in notarial activities, and upon retirement, the remaining amount of the pledge was returned to the notary.

notaries have the right perform notarial acts for all who apply to them, with the exception of their close relatives. When performing notarial acts, two witnesses should have been present, and if a deed of sale for real estate was drawn up, then there should have been three. The parties were required to submit a police certificate of self-identity, a certificate from the local government about the ownership of the property being alienated by the seller. The draft deal was drawn up on stamped paper, signed in the presence of a notary, including witnesses. After payment of duties and fees, the act was entered into the land register and issued to the parties against receipt.

At the beginning of the XX century. drafted a new edition Provisions on the notarial part. The main provisions it contained were:

1) replacement of notarial positions only by lawyers with high theoretical training for this position;

2) a detailed statement in law of the duties of a notary;

3) establishment of effective supervision over notarial activities.

30. The development of notaries in the Soviet period

After the October Revolution in Russia, fundamental changes took place in state and public life, which actually destroyed the existence of a free notary.

Decree No. 1 "On the Court" the old state authorities were abolished, including courts, institutions of judicial investigators, prosecutorial supervision, jury and private advocacy, and notaries were abolished somewhat later. The Regulations on the notary part were also canceled and the nationalization of notary offices was announced, a little later they were liquidated, and notary departments were created in their place, which were headed by people's notaries, but soon they were also abolished.

On October 4, 1922, the first legislative act on the notaries of the Soviet period was adopted - Regulations on the state notary of the RSFSR, according to which the executive committees of local authorities created notary offices locally. Where it was not possible to establish notary offices, the performance of notarial functions, except for the execution of acts and certification of contracts, was entrusted to people's judges.

Notaries were authorized to perform the following actions:

1) making obligatory notarial deeds;

2) certification of contracts concluded by state, cooperative, public institutions, enterprises, organizations;

3) protesting bills of exchange, etc.

On May 14, 1926, the Decree of the Central Executive Committee and the Council of People's Commissars of the USSR "On the basic principles of organizing a state notary" was adopted, where the following were identified as the main principles:

1) the inadmissibility of notaries filling other public positions;

2) receipt by notaries of remuneration for their work only from the state;

3) obligatory observance of notarial secrecy.

Later, the Regulations on the State Notaries of the RSFSR were adopted on July 20, 1930, December 31, 1947, September 30, 1965. And only on July 19, 1973, the USSR Supreme Soviet adopted the Law of the USSR "On the State Notaries", and on August 2, 1974 the Law of the RSFSR "On the State Notaries" was adopted, which legislatively consolidated the powers of notaries to issue certificates: on the ownership of a share in the common property of the spouses, on a share in the common property of the spouses at the request of the surviving spouse, as well as on a share in the common property registered for the surviving spouse.

After the collapse of the USSR, reforms in the direction of building a state of law showed the need to solve the problem of ensuring the legality of civil circulation, primarily in the field of real estate, protecting the rights and freedoms of citizens. And adopted in 1993, the Fundamentals of the legislation of the Russian Federation on notaries proclaimed a free notary of the Latin type.

31. The concept of a notary

The term "notary" is ambiguous, it can be considered as:

1) a system of bodies and officials vested in accordance with the law with the right to perform notarial acts;

2) branch of legislation as a set of legal norms regulating public relations in the field of notaries;

3) an academic discipline, the subject of which is the study of issues of notarial proceedings and the activities of its participants in the notarial field.

The notary as a system of organs has the following characteristic features:

1) the appointment of a notary is to provide citizens and legal entities with qualified legal assistance;

2) notarial activity is of a legal nature, and its result is legal consequences (for example, notarized documents have legal force);

3) the subject of notarial activities are indisputable civil rights and legal facts. If a legal dispute arises during notarial proceedings, the notarial proceedings must be suspended until the dispute is resolved.

Currently, there are two main notarial systems in the world - the Latin and the Anglo-Saxon type.

For latin type it is characteristic that the notary acts as an independent representative of the state, endowed on behalf of the state with the authority to perform notarial acts and bears personal responsibility for the performance of notarial acts, and control over his activities is carried out by the state represented by the justice authorities and notary chambers. In countries with an Anglo-Saxon notary system, the notary and the lawyer act in one person.

Adopted in 1993, the Fundamentals of the legislation of the Russian Federation on notaries proclaimed a free notary of the Latin type.

The notary is characterized by the performance of certain functions:

1) law enforcement or protective, ensuring the legality and legality of the actions of participants in civil circulation;

2) jurisdictional, since the notary is engaged in both law-establishing and law enforcement activities;

3) preventive and prophylactic;

4) law enforcement, expressed in the fact that the notary is obliged to provide the necessary conditions for the activities of other participants in notarial proceedings;

5) law establishing, which consists in the need to establish certain groups of legal facts in a notarial procedure.

32. Notarial activity

Currently, the notary in the Russian Federation is not included in the system of executive authorities, and the notary is not an official, but acts as an independent representative of the state, endowed by him in a special manner with the authority to perform notarial acts on behalf of the Russian Federation.

Notarial activity in the Russian Federation has a number of legal guarantees:

1) the notary is impartial, i.e. the parties who applied to him for legal assistance are in an equal position, the notary is not entitled to give preference to any of the parties;

2) independence is manifested in the fact that in relation to the performed notarial act, the notary must independently make decisions without anyone's instructions;

3) in his activities, the notary is guided by the Constitution of the Russian Federation, the Constitutions of the republics within the Russian Federation, the Fundamentals of the legislation of the Russian Federation on notaries, legislative acts of the Russian Federation and subjects of the Russian Federation adopted within their competence, as well as international treaties;

4) a notary in the performance of official duties, as well as persons working in a notary's office, are prohibited from disclosing information, divulging documents that became known to them in connection with the performance of notarial acts, including after resignation or dismissal, except in cases where certificates of completed notarial acts are issued at the request of the court, prosecutor's office, investigating authorities in connection with criminal or civil cases being handled by them, as well as at the request of the arbitration court in connection with disputes being resolved by it.

The law establishes certain restrictions on notarial activities. Yes, Art. 6 of the Fundamentals of the legislation of the Russian Federation on notaries (hereinafter referred to as the Fundamentals) states: "A notary is not entitled to engage in independent entrepreneurial and any other activities other than notarial, scientific and teaching, and to provide mediation services when concluding contracts."

The activity of notaries takes place in certain notarial districts, which are established in accordance with the administrative-territorial division of the Russian Federation. In cities that have a district or other administrative division, the notarial district is the entire territory of the corresponding city.

The territory of activity of a notary may be changed by a joint decision of the body of justice and the notary chamber. However, the body of justice, together with the notarial chamber, may establish a different district for conducting inheritance cases.

At the same time, the performance by a notary of a notarial action outside his notarial district does not entail the recognition of the invalidity of this action.

33. Legal sources of notarial activity

The question of the sources of notarial legislation is of no small legal importance, since notarial practice constantly raises questions about the choice of the legal norm that should be followed when performing a particular notarial act.

1) the main source of any branch of Russian law is Constitution of the Russian Federation. One of the central importance is the rule on the right to receive qualified legal assistance (Article 48). Currently, the provision of such assistance, along with lawyers, is also entrusted to notaries, who in this case represent the notary office as a public legal institution;

2) federal laws. These primarily include Fundamentals of Russian legislation on notaries, adopted by the Supreme Council of Russia on February 11, 1993. The fundamentals of Russian legislation on notaries are the main act of an organizational and legal nature, defining the modern organization of the notary, the legal status, competence and procedure of the notary. Article 333.24 of the Tax Code of the Russian Federation establishes the amount of state duty for performing notarial acts. The Civil Code of the Russian Federation establishes cases of notarization of transactions, determines the essence of specific notarial actions;

3) laws of subjects of the Russian Federation According to Art. 72 of the Constitution of the Russian Federation, the notary is assigned to the sphere of joint jurisdiction;

4) normative acts of the President of the Russian Federation. For example, Decree of the President of the Russian Federation of July 22, 2002 No. 767 “On the use of the State Emblem of the Russian Federation on notary seals”;

5) acts of federal executive bodies These acts are adopted on a number of issues, including in cases expressly specified in the Fundamentals of the legislation of the Russian Federation on notaries. Thus, the Instruction on the procedure for performing notarial acts by officials of executive authorities dated March 19, 1996, as well as the Order of the Ministry of Justice of the Russian Federation dated April 10, 2002 No. certification inscriptions on transactions and witnessed documents";

6) in accordance with Part 4 of Art. 15 of the Constitution of the Russian Federation generally recognized principles and norms of international law and international treaties of Russia are part of its legal system.

34. Financial support for notarial activities

The source of financing for the activities of a notary engaged in private practice is the money received by him for performing notarial acts and providing services of a legal and technical nature, as well as other financial receipts that do not contradict the legislation of the Russian Federation. State notary offices are supported by deductions from the federal budget of the Russian Federation.

A notary engaged in private practice charges a fee equal to the state fee established by Art. 333.24 of the Tax Code of the Russian Federation. In other cases, the tariff is determined by an agreement between individuals and (or) legal entities who applied to a notary, and a notary. All costs associated with the performance of notarial acts and ensuring the safety of documents, he pays from the notary fee charged; paid: rent of premises, utility bills, stationery, insurance premiums, contributions to the notary's chamber, salaries to employees of the notary's office, income tax, contributions to the pension fund, social insurance fund, compulsory medical insurance funds. The funds received by a notary engaged in private practice, after paying taxes and other obligatory payments, become the property of a notary. The notary's clients are obliged to pay the state fee before performing notarial acts.

The Tax Code of the Russian Federation, for example, establishes the following the size of the state fee for the performance of notarial acts by public notaries:

1) for the certification of powers of attorney for transactions that require a notarized form - 200 rubles;

2) for certification of constituent documents (copies of constituent documents) of organizations - 500 rubles;

3) for certification of an agreement on the payment of alimony - 250 rubles;

4) for the certification of the marriage contract - 500 rubles;

5) for certifying an agreement on changing or terminating a notarized contract - 200 rubles;

6) for the certification of wills, for the adoption of a closed will - 100 rubles, etc.

Moreover, for notarial acts performed outside the premises of the state notary's office, executive authorities and local governments, the state fee is paid in the amount increased by one and a half times.

Privileges for individuals and legal entities provided for by the legislation on the state fee apply to these persons when performing notarial acts, drafting documents, issuing copies and performing technical work both by notaries working in state notary offices and by notaries engaged in private practice.

35. The procedure for appointing a notary and terminating his powers

The total number of positions of notaries is determined by the body of justice together with the notarial chamber, as a rule, based on the number of people living in a certain territory and the number of notarial acts performed.

The position of a notary is established and liquidated by the above mentioned bodies.

Authorization of a notary is made on the basis of the recommendation of the notarial chamber by the Ministry of Justice of the Russian Federation or, on its behalf, by the justice authority on a competitive basis from among licensed persons. Persons who have passed the qualifying exams receive a license for the right to engage in notarial activities.

The competition must be announced by order of the territorial body of the Federal Registration Service no later than 10 days from the date of opening of the vacant position of a notary, indicating the terms of the competition, the place and time of the meeting of the competition commission, as well as the deadline for accepting documents for the competition.

To conduct the competition, by order of the territorial body, a tender commission is formed in the amount of 8 people from an equal number of employees of the territorial body of the Federal Registration Service and members of the notary chamber who are notaries.

To participate in the competition are allowed citizens of the Russian Federation with a higher legal education, who have completed an internship at a state notary's office or at a notary engaged in private practice, who have passed a qualifying exam, who have a license for the right to notarial activities.

During the competition, the contestants are evaluated on the basis of the documents submitted by them, including documents on the internship and the results of the qualifying exams.

The candidate with the most points is considered the winner of the competition.

In case of equality of points for several candidates, the decision of the competition commission is made by open voting. The results of voting and the decision of the competition commission are announced to the persons who took part in the competition on the next day after the end of the competition.

Termination of powers of a notary Dismissal of a notary, working in a state notary office, is carried out in accordance with the labor legislation of the Russian Federation and the republics within the Russian Federation.

A notary engaged in private practice resigns at his own request or is relieved of his powers on the basis of a court decision depriving him of the right to notarial activities in the following cases:

1) his conviction for committing an intentional crime - after the entry into force of the sentence;

2) limitation of legal capacity or recognition as incapacitated in the manner prescribed by law;

3) at the request of the notarial chamber for repeated disciplinary offenses, violation of the law.

36. Intern and assistant notaries

notary trainee may be a person with a higher legal education, and a notary's assistant - having a license for the right to notarial activities.

Appointment as an intern и assistant notaries in the state notary's office is carried out by the body of justice on the basis of an employment contract, which defines their rights and obligations. An internship with a notary engaged in private practice is also carried out on the basis of an employment agreement (contract) between the notary and the person wishing to undergo an internship.

Persons applying for the position of a notary must complete an internship for a period of at least one year in a state notary's office or with a notary engaged in private practice. The period of internship for persons who have at least 3 years of experience in the legal profession may be reduced by a joint decision of the justice authority and the notary chamber. The duration of the internship cannot be less than 6 months. The term of the internship may be extended for the duration of the intern's illness or his absence for other valid reasons by a joint decision of the justice authority and the notarial chamber.

The procedure for passing the internship is determined by the Order of the Ministry of Justice of the Russian Federation dated June 21, 2000 "On approval of the procedure for passing the internship by persons applying for the position of a notary." To determine the level of training of persons wishing to undergo an internship with notaries, an exam is held.

The direct supervision of the work of interns in the state notary's office is carried out by a notary with at least 3 years of work experience in the specialty, who is entrusted with these functions by order of the justice authority.

The remuneration for the work of a trainee in a state notary's office is made from the salary fund of the state notary's office.

The territorial body of the Federal Registration Service approves the internship program, which is unified and mandatory for all interns and internship leaders and contains a list of activities aimed at obtaining special theoretical knowledge by the intern, acquiring practical skills in performing notarial acts and organizing the work of a notary. Reducing the internship period does not relieve the intern from the obligation to master the internship program.

Responsibilities of trainees may include: preparation of draft notarial documents, reception of visitors, legal assessment of submitted documents, advising citizens and legal entities on issues of notarial acts, etc.

At the end of the internship, the supervisor of the intern draws up a conclusion on its results, which is attached to the application for passing the qualification exams.

37. State notary offices

State notary offices are opened and abolished by the Ministry of Justice of the Russian Federation or, on its behalf, by the ministries of justice of the republics within the Russian Federation and by the justice authorities of other subjects of the Russian Federation.

Notaries working in state notary offices are authorized to perform the following notarial acts:

1) certification of transactions;

2) issuance of a certificate of ownership of a share in the common property of the spouses;

3) the imposition and lifting of a prohibition on the alienation of property;

4) certification of copies of documents and extracts from them, the authenticity of the signature on the documents, the accuracy of the translation of documents from one language into another;

5) certification of the fact that a citizen is alive, that a citizen is in a certain place;

6) identification of the citizen with the person depicted in the photograph;

7) certification of the time of presentation of documents;

8) transfer of the application of individuals and legal entities to other individuals and legal entities;

9) accepting monetary amounts and securities as a deposit;

10) execution of executive inscriptions, protests of bills, maritime protests;

11) presentation of checks for payment and certification of non-payment of checks;

12) acceptance for storage of documents;

13) provision of evidence;

14) issuance of a certificate of the right to inheritance;

15) taking measures for the protection of hereditary property.

In the absence of a state notary's office in the notary district, the performance of these notarial acts is entrusted by a joint decision of the body of justice and the notary chamber to one of the notaries engaged in private practice.

If there is no notary public at all in the settlement, then the obligation to perform notarial acts is assigned on officials of executive authorities who are entitled to perform the following notarial acts:

1) certification of wills and powers of attorney;

2) taking measures for the protection of hereditary property;

3) certification of the accuracy of copies of documents and extracts from them, as well as the authenticity of signatures on documents.

Also, officials of consular institutions of the Russian Federation are authorized to perform certain notarial acts.

The Ministry of Justice of the Russian Federation maintains a register of all state notary offices and notary offices engaged in private practice.

38. Notary in private practice

Along with state offices in the Russian Federation, there are private notaries.

A notary engaged in private practice is endowed with a wide range of powers:

1) have the right to open settlement and other accounts in any bank, including foreign currency, from which a notary can transfer money for renting premises, make settlements with tax authorities, a pension fund. Also, the notary has the right to open a deposit account, to which the client transfers money so that the notary, at his direction, transfers this money to an organization, individual, etc. The client's money stored in the notary's deposit account is not his income;

2) have the right to have property and personal non-property rights and obligations;

3) have the right to hire and fire employees. In this case, he must pay them wages, make settlements for these workers with a pension fund, a fund for compulsory medical insurance and social insurance;

4) manage the received income. But it must be taken into account that he is obliged to pay salaries to employees, pay for the rent of premises, office supplies, etc. He also transfers 28% of income to the pension fund for himself, pays 35% to the tax authorities, and only after that the notary has his net income that he can dispose of;

5) act in court, arbitration court on his own behalf and perform other actions in accordance with the legislation of the Russian Federation and the republics within the Russian Federation.

Notaries engaged in private practice are authorized to perform the same notarial acts as public notaries, with the exception of issuing a certificate of the right to inheritance and taking measures to protect the inheritance property.

In the event that notaries employ citizens under employment contracts or under civil law contracts, the subject of which is the performance of work and the provision of services, they are registered with the PFR bodies as notaries engaged in private practice and notaries using the labor of hired workers. Therefore, when registering a notary as an employer, in addition to the above application, passport and copies of documents, they are also presented with certified copies of contracts.

A notary engaged in private practice is responsible for his actions with all his property. He is obliged to conclude an insurance contract for his activities and, therefore, the damage caused by the notary is compensated at the expense of the sum insured, and in case of its insufficiency, at the expense of other property of the notary.

39. Legal status of notary chambers

Chamber of Notaries is a non-profit organization, which is a professional association based on the mandatory membership of notaries in private practice. Persons who have received or wish to obtain a license for the right to notarial activities may also be members of the notarial chamber.

In the Russian Federation there is Federal Notary Chamber and notary chambers of the constituent entities of the Russian Federation, created in each subject of the Russian Federation and the cities of Moscow and St. Petersburg.

The Notary Chamber is a legal entity and organizes its work on the principles of self-government, publicity, legality and decency.

The goals of the activities of notary chambers are: representing and protecting the interests of notaries, providing them with assistance and assistance in the development of private notarial activities; organizing internships for persons applying for the position of a notary, and improving the professional training of notaries; organization of notarial activity insurance.

The notarial chamber is created by the decision of the meeting of founders.

constituent Assembly adopts its charter, elects the governing and controlling bodies of the chamber - the president of the chamber, the board, the audit commission.

The supreme body of the notarial chamber is a meeting of members of the notarial chamber.

The board of directors and the president of the notary chamber, elected by the meeting of members of the notary chamber, are in charge of the notary chamber.

The powers of the Assembly of members of the chamber include: election of the board, president, audit commission; approval of the income and expenditure estimates of the chamber; determining the size of membership fees; resolution of other issues related to the activities of the chamber. Membership fees can be set as a percentage of the income received by a notary, or be a fixed amount or be calculated in terms of minimum wages.

The powers of the board include: determining the date and time of the meeting of members of the Chamber; preparation of issues submitted for consideration by the meeting; application together with the justice authorities to the court of a petition to deprive notaries of the right to notarial activities; consideration of complaints against the actions of a notary; consideration, on behalf of the meeting of the chamber, of other issues related to the activities of the chamber. The activities of the board are carried out on the basis of collegiate leadership, publicity, regular reporting to members of the notary chamber and the wide involvement of notaries in the work of the notary chamber.

With a large amount of work in the regional notary chamber, a vice president may be elected for the same term as the president of the notary chamber.

Control over the financial and economic activities of the Chamber is carried out by the Audit Commission.

40. Federal Notary Chamber

Federal Chamber of Notaries is a non-profit organization representing a professional association of notary chambers.

The Constituent Assembly adopts its charter, elects the president of the chamber, the board, and the audit commission.

The charter of the Federal Notarial Chamber is adopted by a meeting of representatives of notarial chambers and registered in the manner established for the registration of charters of public associations.

The powers of the Federal Notarial Chamber include:

1) coordination of the activities of notarial chambers, through which the same approaches to the performance of notarial acts are developed;

2) representation of the interests of notarial chambers in public authorities and administration, enterprises, institutions, organizations;

3) ensuring the protection of social and professional rights of notaries engaged in private practice;

4) participation in the examination of draft laws of the Russian Federation on issues related to notarial activities;

5) ensuring the advanced training of notaries, trainees and assistants to notaries;

6) organization of insurance of notarial activities;

7) representing the interests of notarial chambers in international organizations.

The charter of the Federal Notarial Chamber may provide for other powers that do not contradict the legislation of the Russian Federation.

The highest body of the Federal Notarial Chamber is the assembly of representatives of notarial chambers, which elects the board and the president of the Federal Notarial Chamber by secret ballot. The powers of these bodies are regulated by the charter of the Federal Notary Chamber.

The meeting of representatives of notarial chambers is convened at least once a year.

Also, at the proposal of the President, the Board of the Chamber may elect the Vice-President of the Chamber, and the Board of the Chamber, on the proposal of the President, the Executive Director of the Chamber. Moreover, a notary may not be appointed to the position of manager of the affairs of the chamber.

To ensure control over the financial and economic activities of the board and the president, an audit commission is elected by a simple majority of votes at a meeting of representatives of notary chambers.

Since 1997, the Federal Notarial Chamber has been publishing the scientific journal Notarial Bulletin. There is a scientific and practical council at the Federal Notary Chamber, which includes leading scientists and experts in the field of notaries. The main function of the council is to develop scientifically based recommendations on the application of legislation relating to notarial activities.

41. Powers of a notary

The totality of statutory powers granted to a notary constitute his competence, which is divided into: subject и territorial.

Subject competence is expressed in what notarial actions the notary is authorized to perform. Thus, the competence of public notaries is wider than that of private practitioners, since, according to Art. 36 Fundamentals, notaries working in state notary offices, in addition to notarial actions provided for private notaries, have the right to issue certificates of the right to inheritance and take measures to protect hereditary property.

Territorial competence involves the performance of certain notarial acts by notaries of a certain notarial district.

The professional activity of notaries in the Russian Federation consists in the performance of notarial acts provided for by law. Articles 35 and 36 of the Fundamentals of the legislation of the Russian Federation on notaries establish a range of these actions.

In carrying out his professional activities, a notary is endowed with a number of rights:

1) to perform notarial acts provided for by the Fundamentals in the interests of individuals and legal entities who apply to him, except for cases when the place of performing a notarial act is determined by the legislation of the Russian Federation or international treaties;

2) draw up draft transactions, statements and other documents, make copies of documents and extracts from them, as well as provide explanations on issues of performing notarial acts. A notary can either draw up a draft transaction himself or certify a completed draft. When drawing up a draft, the notary ensures that the terms of the contract comply with the law or do not contradict it, otherwise any inaccuracy or ambiguity may become a reason for challenging this document;

3) request from individuals and legal entities information and documents necessary to perform notarial acts. If the missing documents can only be issued directly to the person who contacted the notary, then the notary does not request them, but offers to present them, explaining the procedure for receiving them. When information can only be provided upon request, the notary draws up a corresponding request. The notary is obliged to check the documents submitted by citizens to perform a notarial act, since the notary himself bears responsibility for the notarial act performed. The legislation of the republics within the Russian Federation may grant other rights to a notary.

The rights of a notary may be limited in cases where the actions they perform directly concern the notaries themselves or their next of kin.

42. Obligations of a notary

When performing notarial acts, notaries have equal rights and perform the same duties, regardless of whether they work in a state notary's office or are engaged in private practice.

The Fundamentals of the legislation of the Russian Federation on notaries establish the following duties of a notary:

1) provide assistance to individuals and legal entities in exercising their rights and protecting legitimate interests;

2) explain to clients their rights and obligations, warn about the consequences of notarial acts performed, so that legal ignorance cannot be used to their detriment. The right to agree with the performance of a notarial act, to refuse it until this document is signed by the parties, the right to freely express will when performing a notarial act, as well as the obligation, after performing a notarial act, to strictly comply with the obligations and conditions that are stipulated, should be explained. because their failure to comply entails civil liability. But before performing a notarial act, the notary is obliged to identify individuals in relation to individuals and verify their legal capacity, and in relation to legal entities, legal capacity is established by studying the constituent documents;

3) perform their duties in accordance with the legislation of the Russian Federation;

4) keep secret information that became known to him in connection with the implementation of his professional activities. Copies of documents stored by a notary can be issued only to persons who took part in the performance of a notarial act, or to those in respect of whom they were performed;

5) refuse to perform a notarial act if it does not comply with the legislation of the Russian Federation or international treaties;

6) in the cases provided for by the legislative acts of the Russian Federation, the notary is obliged to submit to the tax authority a certificate on the value of property passing into the ownership of citizens, necessary for calculating the tax on property passing by inheritance or gift;

7) provide information about the performed notarial acts to the notarial chamber of his district in case of their demand;

8) be impartial in their activities. He is not entitled to provide intermediary services when concluding contracts;

9) to conclude an insurance contract for his activities, if he is engaged in private practice, he is not entitled to perform his duties without a contract. The sum insured cannot be less than 100 times the minimum monthly wage established by law.

43. Rules for performing notarial acts

The rules for performing notarial acts include:

1) the place of performance of notarial acts. Notarial acts are performed by any notary, with the exception of cases provided for by law. In particular, a certificate of ownership in the event of the death of one of the spouses is issued by a state notary office, whose competence includes registration of inheritance rights;

2) the grounds and terms for postponing and suspending the performance of a notarial act. Thus, the performance of a notarial act may be postponed if it is necessary to request additional information from individuals and legal entities;

3) identification of the applicant for the notarial act. When performing a notarial act, the notary must establish the identity of the person who applied for the notarial act, his representative or representative of the legal entity;

4) checking the legal capacity of citizens and the legal capacity of legal entities participating in transactions;

5) the procedure for signing a notarized transaction, application and other documents. The notary is obliged to read aloud to the participants the content of the notarized transaction and other documents;

6) requirements for documents submitted for the performance of notarial acts. Notaries do not accept for notarial acts documents that have erasures or additions, crossed out words and other unspecified corrections, as well as documents executed in pencil;

7) making certification inscriptions and issuing certificates;

8) restrictions on the right to perform notarial acts. A notary is prohibited from performing notarial acts in his own name and on his own behalf, in the name and on behalf of his spouses, them and their relatives;

9) refusal to perform a notarial act. A notary must refuse to perform a notarial act in the following cases:

a) if it is contrary to the law or this action is to be performed by another notary;

b) if an incompetent citizen or a representative who does not have the necessary powers, etc., applied for a notarial act;

10) appeal against notarial acts or refusal to perform them. An interested person who considers a notarial action performed or a refusal to perform a notarial action to be wrong, has the right to file an application about this with the district court at the location of the notary's office;

11) all notarial acts performed by a notary must be registered in the register.

44. Notary office work

Notarial proceedings - this is a set of legal actions of a notary and persons who have applied for a notarial action, aimed at performing a certain notarial action, established by law.

Notarial office work in Russia is carried out by notaries in accordance with the rules approved by the Ministry of Justice of the Russian Federation together with the Federal Notary Chamber.

The whole process of notarial office work can be divided into three interrelated stages:

1) paperwork carried out in notary offices;

2) maintaining a register of registration of notarial acts. The register is a special book in which the documents compiled during the performance of notarial acts are recorded. It must be properly executed (sheets are numbered, stitched, and on the reverse side of the last sheet, authorized employees of justice or the notary chamber record the number of stitched and numbered sheets, which is aimed at the impossibility of replacing sheets in the register);

3) filling in notarial certificates and certification inscriptions.

Notarial office work is conducted in the language provided for by the legislation of the Russian Federation, the republics within the Russian Federation, the autonomous region and autonomous regions. Article 68 of the Constitution of the Russian Federation establishes that the state language of the Russian Federation throughout its territory is Russian. The republics within the Russian Federation have the right to establish their own state languages.

The Russian language as the state language is studied in educational institutions. But citizens of Russia have the right to apply to state bodies, public organizations, enterprises and institutions of the Russian Federation with proposals, statements, complaints in the state language, their native language or in any other language of the peoples of the Russian Federation that they know. Answers to applications and complaints of citizens of the Russian Federation sent to state bodies, public organizations, enterprises and institutions of the Russian Federation must be given in the language of the appeal. If it is impossible to give an answer in the language of the appeal, the state language of the Russian Federation is used.

The notary, not being a legal entity, has his own seal with the image of the State Emblem of Russia, which symbolizes the activity of the notary as an official person performing notarial acts on behalf of the state. In accordance with the Decree of the President of the Russian Federation. “On the use of the State Emblem of the Russian Federation on the seals of notaries” The State Emblem of the Russian Federation is placed on the seals of notaries and reproduced on documents drawn up and (or) issued by them.

Responsibility for the organization and proper organization of office work and the state of the archive rests with the notary.

45. Procedure for performing notarial acts

The concept of notarial action is ambiguous. Allocate dynamic and static concepts of notarial action. Dynamic, expressed in the consistent commission of a whole system of legal facts, the static concept of a notarial act is interpreted as a result of notarial proceedings, as a legal fact

The following features of a notarial act can be distinguished:

1) it is performed only by a certain circle of persons established by federal legislation - state and privately practicing notaries, officials of executive authorities and consular institutions;

2) notarial action is performed on behalf of the Russian Federation;

3) each notarial act must be provided for by federal law. The Fundamentals of the Russian Federation legislation on notaries lists the range of notarial actions, but this list is not exhaustive, since the legislative acts of the Russian Federation may provide for other notarial actions;

4) notarial acts are carried out only within the framework of a special procedure - notarial proceedings;

5) a notarial action must comply with the requirements of the legislation not only in the form of its performance, but also in the essence of the action itself, determined by the norms of substantive law;

6) obligatory payment of state duty or notarial fee in accordance with the legally established rates.

Notarial acts are usually performed in a notary's office. In some cases, they can be committed outside the office, for example, if the citizens for whom they are performed, for a good reason, cannot come to the notary. In this case, the place of performance of the notarial act is recorded in the certification inscription on the document and in the register for registration of notarial acts, indicating the exact address.

To make certification inscriptions, stamps with the text of the corresponding inscription can be used.

To store documents requested and left after notarial acts, notaries keep orders, which are usually formed according to the types of documents. For the storage of notarial certificates of the right to inheritance and documents on the basis of which these certificates were issued, a certain procedure is established.

For the performance of notarial acts, as well as for drafting transactions, statements, making copies of documents, extracts from them, issuing duplicate documents from interested parties, a state fee or tariff is charged in accordance with applicable law.

46. The concept of certification of transactions

A notary is authorized to certify transactions for which the legislation of the Russian Federation and the republics within the Russian Federation establishes a mandatory notarial form. At the request of the parties, the notary may certify other transactions.

Deals actions of citizens and legal entities aimed at establishing, changing or terminating civil rights or obligations are recognized.

Civil law highlights unilateral and bilateral transactions.

Unilateral a transaction is considered, for the conclusion of which, in accordance with the law, other legal acts or agreement of the parties, it is necessary and sufficient to express the will of one party. To conclude an agreement (bilateral deal) the expression of the agreed will of two parties or three or more parties (multilateral transaction) is necessary.

Article 163 of the Civil Code of the Russian Federation establishes that notarial certification of the transaction is carried out by making on a document expressing its content and signed by the person or persons making the transaction, or persons duly authorized by them, an acknowledgment inscription by a notary or other official entitled to perform such a notarial act.

If one of the parties has fully or partially executed a transaction requiring notarial certification, and the other party evades such certification of the transaction, the court shall have the right, at the request of the party that performed the transaction, to recognize the transaction as valid.

In this case, subsequent notarization of the transaction is not required.

Compared to the previous civil legislation, the list of transactions subject to mandatory notarization has now been significantly reduced. These include, in particular: a will (Article 1124 of the Civil Code of the Russian Federation); a power of attorney for transactions requiring a notarial form (clause 2, article 185 of the Civil Code of the Russian Federation); an annuity agreement and its variety - a life maintenance agreement with a dependent (Article 584 of the Civil Code of the Russian Federation); assignment of a claim based on a transaction made in a notarial form, both on the basis of the requirements of the law and at the request of the parties (clause 1 of article 389 of the Civil Code); transfer of a debt based on a transaction made in a notarial form, both at the request of the law and at the request of the parties (Article 391 of the Civil Code of the Russian Federation with reference to clause 1 of Article 389 of the Civil Code of the Russian Federation); marriage contract (clause 2, article 41 of the Family Code of the Russian Federation of December 29, 1995 No. 223 - FZ); an agreement on the payment of alimony (Article 100 of the RF CC) and other transactions.

Before certifying a particular transaction, the notary is obliged to explain to the parties the meaning and significance of the draft transaction submitted by them and to check whether its content corresponds to the actual intentions of the parties and whether it contradicts the requirements of the law. Explaining the legal consequences of transactions made by citizens, the notary acts as a professional disinterested and impartial adviser, providing the participants in the transaction with equality of their rights and protection of interests.

47. Certification of certain types of transactions

The fundamentals of the legislation of the Russian Federation on notaries establish the rules for the following types of transactions:

1) contracts for the alienation and pledge of property subject to registration. These contracts can be certified subject to the submission of documents confirming the ownership of the alienated or mortgaged property. These documents must be marked with state registration. The pledge agreement must indicate the subject of the pledge and its assessment, the amount and term for the fulfillment of the obligation secured by the pledge, as well as an indication of which party has the pledged property;

2) agreements on the construction of a residential building, alienation of a residential building and other immovable property. These contracts are certified at the location of the property or at the place of allotment of the land plot. The notary needs to check the compliance of the contract with the legislation governing the right of citizens to build residential buildings;

3) wills. The notary certifies the wills of capable citizens drawn up in accordance with the requirements of the legislation of the Russian Federation and the republics within the Russian Federation and personally submitted by them to the notary. The will must be drawn up in writing, indicating the place and time of its preparation and signed personally by the testator in the presence of a notary. The will is drawn up, signed by the testator and certified by a notary in two copies, one of which is transferred to the testator, and the other remains in the files of the notary's office and is kept in the order according to the nomenclature of cases;

4) powers of attorney. A power of attorney is a written authorization issued by one person to another person for representation before third parties. A power of attorney issued by way of substitution is subject to notarization upon presentation of the main power of attorney, in which the right of substitution is stipulated, or upon presentation of evidence that the representative under the main power of attorney is forced to do so by force of circumstances to protect the interests of the issuer of the power of attorney. The power of attorney is valid for the period specified in it, which cannot exceed 3 years.

The number of copies of documents that set out the content of a transaction certified by a notary is determined by the persons who applied for a notarial act, but cannot exceed the number of parties involved in the transaction. Only the will and agreements on the pledge of property, the construction of a residential building, the alienation of a residential building and other real estate are provided to the notary in at least two copies, one of which remains in the affairs of the notary's office.

48. Issuance of a certificate of inheritance

A notary who has received a message about an opened inheritance is obliged to notify about this those heirs whose place of residence or work is known to him.

The inheritance opens with the death of a citizen, and declaring a citizen dead by the court entails the same legal consequences as the death of a citizen. The day of opening of the inheritance is the day of the citizen’s death. When a citizen is declared dead, the day of opening of the inheritance is the day the court decision to declare the citizen dead comes into force.

Place of opening of inheritance is the last place of residence of the decedent. If it is unknown or located outside the Russian Federation, then the location of the property in the Russian Federation will be considered the place of opening of the inheritance. If the hereditary property is located in different places, the place of its discovery shall be the location of the immovable property included in the inheritance or the most valuable part of the property.

Inheritance certificate issued at the place of opening of the inheritance by a notary or an official authorized in accordance with the law to perform such notarial action. At the place of opening of the inheritance, the notary accepts an application for acceptance of the inheritance both by will and by law. The application must be made in writing.

The certificate of the right to inheritance is issued at the request of the heir. At the request of the heirs, a certificate may be issued to all heirs together or to each heir separately, for all of the inheritance property as a whole or for its separate parts.

As a rule, a certificate of the right to inheritance is issued to the heirs at any time after the expiration of months from the day the inheritance was opened. However, the certificate may also be issued earlier than the specified period, if there is reliable evidence that, apart from the persons who applied for the issuance of the certificate, there are no other heirs entitled to the inheritance or its corresponding part.

To issue a certificate of the right to inheritance, documents confirming the time and place of the opening of the inheritance, marriage, family or other relations with the testator must be submitted to the notary's office. If inheritance is carried out by will, then a copy of the will must be provided.

When issuing a certificate of the right to inheritance to minor heirs, the notary is obliged to send a copy of the certificate of the right to inheritance to the guardianship and guardianship authorities to control the disposal of property.

In accordance with paragraph 3 of Art. 113 of the Civil Code of the Russian Federation, the issuance of a certificate of the right to inheritance can be suspended in two cases:

1) by a court decision;

2) in the presence of a conceived but not yet born heir.

The notary at the place of opening of the inheritance is authorized to accept claims from the testator's creditors, which must be presented in writing.

49. Protection of hereditary property

In order to protect the rights of heirs, legatees, creditors or the state, if necessary, in order to eliminate the possibility of damage, destruction or theft of hereditary property, the notary at the place of opening of the inheritance, upon notification of citizens, legal entities or on his own initiative, has the right to take measures to protect the hereditary property.

Messages received by the notary's office are registered in the register of applications for taking measures to protect hereditary property on the day they are received. According to such statements, inheritance cases are opened by a notary, if they have not yet been opened.

In order to protect the inheritance, the notary must produce inventory of the estate with two witnesses.

Measures for the protection of hereditary property and its management are carried out within a period determined by the notary, taking into account the nature and value of the inheritance and the time required for the heirs to enter into the inheritance, but not more than within 6 months. This period may be extended for another 3 months in case of refusal of the heir from the inheritance, non-acceptance of the inheritance by another heir or in case of transfer of the right to accept the inheritance.

If the hereditary property is located in several places, the notary at the place of opening of the inheritance sends through the justice authorities to the notary or an official authorized to perform notarial acts at the location of the relevant part of the hereditary property, a binding order for the protection of this property or management of it.

The property included in the inheritance, with the exception of cash, currency valuables, precious metals and stones, products made from them, securities that do not require management, may be transferred by a notary under an agreement for storage to one of the heirs. On the transfer of property for storage an entry is made in the act of inventory and a signature is taken from the person who accepted the property for storage, about the warning made to him about criminal and material liability for embezzlement, alienation or concealment of hereditary property and losses incurred. The cash included in the inheritance is deposited with a notary, and currency values, precious metals and stones, products made from them and securities that do not require management are transferred to the bank for safekeeping. Weapons and explosives found in the property of the deceased are handed over to the internal affairs bodies according to a special inventory.

State awards, which are subject to the legislation of the Russian Federation, are not included in the inheritance; they are left or transferred to their families for storage as a memory. Valuable manuscripts, literary works, letters of historical or scientific significance are included in the inventory act and transferred to the heirs for safekeeping.

50. Issuance of certificates of ownership of a share in the common property of the spouses

The issuance by notaries of certificates of ownership of a share in the common property of the spouses is carried out on the basis of Art. 74-75 Fundamentals of the legislation of the Russian Federation on notaries and Art. 34-37 of the Family Code of the Russian Federation.

Yes, Art. 34 of the Family Code of the Russian Federation establishes what applies to the common property of the spouses.

It should be noted that a certificate of ownership of property owned by each of the spouses cannot be issued.

The basics provide for the issuance of certificates of ownership of a share in common property:

1) at the joint application of the spouses;

2) at the request of the surviving spouse.

Issuance of a certificate of ownership of a share in common property acquired during marriage is carried out upon a joint written application of the spouses.

A certificate of ownership of a share in the common property of the spouses can be issued at any notary, with the exception of certificates of ownership of a residential house, apartment, cottage, garden house, garage, as well as a land plot, which are issued by a notary at the location of the said property.

At the request of the spouses, the certificate may be issued both to both of them and to one of them, either for equal or unequal shares.

To issue a certificate of ownership of a share in the common property of the spouses, a combination of three conditions must be present:

1) the presence of marital relations. This fact can be established by a notary, for example, on the basis of a marriage certificate or a marriage registration mark in the spouses' passports;

2) the fact of acquisition of property during the period of registered marriage;

3) the property must be the common joint property of the spouses.

In the event of the death of one of the spouses, a certificate of ownership of a share in the common property of the spouses shall be issued by a notary at the place of opening of the inheritance upon a written application by the surviving spouse with notification of the heirs who have accepted the inheritance.

Upon a written application of the heirs who accepted the inheritance, and with the consent of the surviving spouse, the share of the deceased spouse in the common property may also be determined in the certificate of ownership.

51. Protest of a bill

At present, the circulation of bills of exchange on the territory of Russia is regulated mainly by the Decree of the Central Executive Committee and the Council of People's Commissars of the USSR of August 7, 1937 "On the Enactment of the Regulation on a Transferable and Promissory Note".

Protest of a bill of non-payment, non-acceptance, non-dating of acceptance - notarial actions aimed at ensuring the protection of the interests of the subjects of the promissory note obligation.

A promissory note is understood as a unilateral obligation, based on a contract and expressed in a strictly defined written form, to pay a certain sum of money. This is a strictly formal document, which is a security, so the absence of at least one of its details leads to its invalidity. A promissory note protest is a public act carried out by a notary in accordance with the legislation of the Russian Federation, with the aim of certifying facts that are legally significant for a bill of exchange obligation.

Protest of a bill of non-payment or non-acceptance can be made by a notary only after the bill has been presented to the payer for acceptance or payment, respectively.

Protest of a bill of non-payment, non-acceptance, non-dating of acceptance means certification of the fact of non-payment of the bill on time, certification of the fact of non-acceptance of the bill and certification of the fact of refusal to set the date of acceptance, respectively.

Before accepting a bill of exchange for protest, the notary must check its details. A bill of exchange must contain: the name "bill" included in the text itself and expressed in the language in which this document is drawn up; a simple and unconditional offer to pay a certain amount; name of the person who must pay (payer); an indication of the due date and the place where the payment is to be made, as well as the name of the person to whom or by whose order the payment is to be made; indication of the date and place of drawing up the bill; signature of the person who issued the bill (drawer).

On the day the bill is accepted for protest, the notary's office presents the payer with a demand for payment (or acceptance) of the bill. If the payer refuses to pay or accept the bill or if it fails to appear before the notary, the latter draws up an act in the prescribed form about the protest of non-payment or non-acceptance and makes an appropriate entry in the register, as well as a note about the protest of non-payment or non-acceptance on the bill itself.

The act of protest of a bill shall indicate: the date of the protest, the surname and initials of the notary, the name of the notary's office, the name of the legal holder of the bill, the details of the bill, the due date, the amount for which the bill was issued, the name of the acceptor or payer, an indication of the presentation of the bill for payment ( acceptance) and non-receipt of payment (acceptance), the place of the protest, the registry number, a note on the collection of state duty or tariff, the signature and seal of a notary.

52. Certification of indisputable facts

According to the Fundamentals of the Legislation of the Russian Federation on the notary, the notary establishes the following indisputable facts:

1) the fact that the citizen is alive;

2) the fact that a citizen is in a certain place;

3) the identity of the citizen's personality with the person depicted in the photograph;

4) time of submission of documents.

The fact that a citizen is alive can be established by a notary or officials of consular institutions of the Russian Federation. Certification of the fact that minors are alive is made at the request of their legal representatives, as well as institutions and organizations in whose care the minor is. This fact can be established both when a citizen appears before a notary, and outside the premises of a notary's office.

A citizen must submit an application to a notary public, which indicates the purpose pursued by the applicant by establishing this fact. On the basis of the submitted application, the notary establishes the identity of the citizen according to the document certifying it. The certificate indicates the place, the date of issue of the certificate, the surname and initials of the notary, the location of his office, the surname, name, patronymic of the person in respect of whom the certificate was issued, his address, the time when the citizen appeared to receive the certificate. This certificate is drawn up in two copies, one of which is issued to the person concerned, and the second is kept in the notary's office.

The fact that a citizen is in a certain place (for example, in cases related to the receipt of alimony), the notary certifies at the request of a citizen.

An application for certification of such a fact may be submitted both in writing and orally. In the application, the citizen indicates the reason for which this request arose, and what purpose the applicant pursues by establishing this fact.

For identity citizen identity with the person depicted in the photograph submitted by this citizen, the interested person submits to the notary an appropriate application, which can be both oral and written. The notary, having established the identity of the applicant, must make sure that it is the citizen who appeared to him that is depicted in the submitted photograph. After that, an appropriate certificate is drawn up in two copies, and a photograph is placed in the upper left corner of the issued certificate.

Certification of the time of presentation of documents It is also made on the basis of an oral or written application of the person concerned. Documents must be presented in two copies. The notary establishes the identity of the applicant, on both copies of the document an acknowledgment inscription is made with the obligatory indication of the person who presented the document.

53. Provision of evidence

At the request of interested parties, a notary provides evidencenecessary in the event of a case arising in court or an administrative body, if there are grounds to believe that the presentation of evidence will subsequently become impossible or difficult. Such an appeal is possible only on the condition that the case for which this evidence will be important has not yet arisen and is not being considered by a court or administrative body.

A person interested in providing evidence must submit a relevant application to the notary's office.

In order to secure evidence, a notary has the right to interrogate witnesses, examine written and material evidence, and appoint an expert examination.

According to the Order of the Ministry of Justice dated March 15, 2000 "On Approval of Methodological Recommendations for the Performance of Certain Types of Notarial Actions by Notaries of the Russian Federation" on the interrogation of a witness in order to secure evidence, the notary draws up a protocol that indicates: the date and place of the interrogation; surname, initials of the notary who conducted the interrogation, date and number of the order of the body of justice on the appointment of a notary, his notary district or the name of the state notary's office; information about the witness; information about the persons participating in the interrogation; warning about liability for giving knowingly false testimony and refusal to give evidence; the content of the testimony of the witness (questions asked to him and answers to them).

During the inspection written and physical evidence a protocol is drawn up, which must indicate: the date and place of the inspection; surname, initials of the notary conducting the inspection, date and number of the order of the body of justice on the appointment of a notary, his notary district or the name of the state notary's office; information about interested persons participating in the inspection; circumstances discovered during the inspection.

About appointment of expertise the notary issues a decision, which indicates: the date of the decision; surname, initials of the notary who issued the decision, date and number of the order of the body of justice on the appointment of a notary, his notary district or the name of the state notary's office; information about the person at whose request the examination is appointed; matters requiring expert opinion; the name of the expert institution entrusted with the performance of the expert examination.

About the time and place of providing evidence the notary must notify the parties and interested persons, whose failure to appear is not an obstacle to the performance of actions to secure evidence.

The notary has the right to propose to the person who applied for the production of securing evidence to deposit money to the office to pay remuneration for witnesses and experts and to cover other expenses for the production of evidence securing.

54. Control over the performance of notarial acts

The fundamentals of the legislation of the Russian Federation on notaries distinguish the following types of control over the performance of notarial acts:

1) judicial control (art. 33);

2) control over the performance of professional duties by notaries (Article 34);

3) tax control (Article 34).

Refusal to perform a notarial act or incorrect performance of a notarial act may be appealed. to court According to Art. 310 Code of Civil Procedure of the Russian Federation. An interested person who considers a notarial action performed or a refusal to perform a notarial action wrong, has the right to file an application about this with the court at the location of the notary or at the location of the official authorized to perform notarial actions. The application must be filed with the court within 10 days from the date when the applicant became aware of the notarial act performed or the refusal to perform the notarial act.

This application is considered by the court with the participation of the applicant, as well as a notary, an official who performed a notarial act or refused to perform a notarial act.

The decision of the court, which satisfied the application for a completed notarial action or a refusal to perform it, cancels the committed notarial action or obliges to perform such an action (Article 312 of the Code of Civil Procedure of the Russian Federation).

Judicial control over the activities of notaries and officials authorized to perform notarial acts is aimed at protecting the interests of individuals and legal entities when applying for notarial acts.

Control over the performance of professional duties by notariesthose working in state notary offices are carried out by the justice authorities, and notaries engaged in private practice are carried out by notary chambers. An audit of the organization of a notary's work is carried out once every 4 years. The purpose of the inspection is to identify violations and errors in work, provide assistance and take measures to eliminate the causes and conditions of deficiencies in work.

Notaries are obliged to provide officials authorized to conduct inspections with information and documents relating to settlements with individuals and legal entities.

Monitoring compliance with tax laws carried out by the tax authorities in the manner and terms provided for by the legislation of the Russian Federation.

The tax authorities are obliged to check the correctness of the calculation and withholding, the timeliness and completeness of transfers to the budget. The correctness of the collection of the notarial fee is determined by the entries in the register of registration of notarial acts.

Based on the results of inspections and examinations of the activities of individuals, an act is drawn up, which must contain all the details of the person being inspected, information about his activities and the results of inspections and examinations.

55. General issues of ethics of a notary

In order to raise the standards of professional activity of notaries of the Russian Federation, on April 18, 2001, the Meeting of representatives of the notarial chambers of the constituent entities of the Russian Federation adopted the Professional Code of notaries of the Russian Federation (Resolution of the Meeting of representatives of the notarial chambers of the constituent entities of the Russian Federation dated April 18, 2001 No. 10 "On the Professional Code of Notaries of the Russian Federation"). The code formulates professional and moral and ethical standards of notarial activity and personal behavior of a notary, describes violations of professional discipline and ethics, principles and types of responsibility, the procedure for imposing and removing penalties, as well as measures to encourage a notary.

According to the code, in his work, a notary must be guided by the principles and precepts of the International Union of Latin Notaries, developed over the centuries of the existence of a notary and proving their legal impeccability.

The Code refers to the following principles:

1) respect for their ministry, public authorities and bodies of the professional community;

2) performance of notarial acts within the framework of the law, resolution of doubts before the act is performed; refraining from action at the slightest doubt about its legality and correctness;

3) paying tribute to Truth;

4) study of materials with predilection and increased thoroughness;

5) following Justice;

6) restriction by the Law;

7) work with Dignity, etc.

Taking office imposes on the notary certain moral and ethical obligations:

1) protect the interests of a person, society and the state, subject to the requirements of the law;

2) promote the establishment of faith in law and justice in society;

3) not to take actions in personal interests that call into question the impartiality and independence of notarial activities and damage the honor and dignity of the notary profession;

4) treat colleagues in the legal profession in a spirit of respect, trust and benevolent cooperation;

5) constantly improve their professional level, competence, study the current legislation and notarial practice;

6) preserve and protect professional secrets;

7) comply with the requirements for compulsory insurance of notarial activities;

8) ensure in their activities high criteria and requirements of a culture of communication, in any situation strive to maintain self-control and personal dignity.

56. Relations between a notary and other participants in notarial proceedings

The Professional Code of Notaries of the Russian Federation regulates the relationship of notaries with various categories of entities: with individuals and legal entities, the notary chamber, colleagues and the notary community, with public authorities and local governments.

Relationships with individuals and legal entities:

1) notarial activities are aimed at ensuring their rights and legitimate interests;

2) a notary is obliged to refuse to perform a notarial act if the demands of persons are unlawful;

3) the notary, when performing notarial acts, explains to them their rights and obligations, warns them about the consequences of the notarial acts performed;

4) before performing a notarial act, the notary is obliged to inform the persons who applied about the amount of the tariff;

5) a notary must show patience, courtesy and tact in relation to those with whom he interacts within the framework of his professional and personal circle of communication, avoiding the manifestation of an inhumane attitude towards people and inattention to their legitimate interests, as well as observe the culture of speech, behavior, external type;

6) a notary in the performance of professional duties should not allow violations without good reason of the established mode of operation of a notary's office.

In relations with the notarial chamber, the notary is obliged:

1) to participate in the performance by the notarial chamber of the public law tasks of the professional association of notaries, in the work of the meetings of the notarial chamber and the events organized by it, in the events for professional development, training and exchange of work experience;

2) timely and in full pay membership fees and other payments established by the general meeting of notaries to the notary chamber;

3) appear at the invitation of the governing bodies of the notarial chamber to consider issues and resolve problems that have arisen in the performance of professional duties of a notary.

In relations with colleagues and the notarial community, the notary must:

1) build their relations with colleagues in the profession on the principles of mutual respect, trust and professional interaction, show correctness and goodwill;

2) be considerate and tactful towards colleagues, informing them of issues that may help in their work, as well as potential professional difficulties and other issues requiring professional solidarity;

3) take all available measures to ensure that employees of the notary's office comply with the requirements of the law and moral and ethical principles.

Authors: Nevskaya M.A., Shalagina M.A.

We recommend interesting articles Section Lecture notes, cheat sheets:

▪ History of the economy. Crib

▪ Operational-search activity. Crib

▪ Land law. Crib

See other articles Section Lecture notes, cheat sheets.

Read and write useful comments on this article.

<< Back

Latest news of science and technology, new electronics:

Artificial leather for touch emulation 15.04.2024

In a modern technology world where distance is becoming increasingly commonplace, maintaining connection and a sense of closeness is important. Recent developments in artificial skin by German scientists from Saarland University represent a new era in virtual interactions. German researchers from Saarland University have developed ultra-thin films that can transmit the sensation of touch over a distance. This cutting-edge technology provides new opportunities for virtual communication, especially for those who find themselves far from their loved ones. The ultra-thin films developed by the researchers, just 50 micrometers thick, can be integrated into textiles and worn like a second skin. These films act as sensors that recognize tactile signals from mom or dad, and as actuators that transmit these movements to the baby. Parents' touch to the fabric activates sensors that react to pressure and deform the ultra-thin film. This ... >>

Petgugu Global cat litter 15.04.2024

Taking care of pets can often be a challenge, especially when it comes to keeping your home clean. A new interesting solution from the Petgugu Global startup has been presented, which will make life easier for cat owners and help them keep their home perfectly clean and tidy. Startup Petgugu Global has unveiled a unique cat toilet that can automatically flush feces, keeping your home clean and fresh. This innovative device is equipped with various smart sensors that monitor your pet's toilet activity and activate to automatically clean after use. The device connects to the sewer system and ensures efficient waste removal without the need for intervention from the owner. Additionally, the toilet has a large flushable storage capacity, making it ideal for multi-cat households. The Petgugu cat litter bowl is designed for use with water-soluble litters and offers a range of additional ... >>

The attractiveness of caring men 14.04.2024

The stereotype that women prefer "bad boys" has long been widespread. However, recent research conducted by British scientists from Monash University offers a new perspective on this issue. They looked at how women responded to men's emotional responsibility and willingness to help others. The study's findings could change our understanding of what makes men attractive to women. A study conducted by scientists from Monash University leads to new findings about men's attractiveness to women. In the experiment, women were shown photographs of men with brief stories about their behavior in various situations, including their reaction to an encounter with a homeless person. Some of the men ignored the homeless man, while others helped him, such as buying him food. A study found that men who showed empathy and kindness were more attractive to women compared to men who showed empathy and kindness. ... >>

Random news from the Archive

Space amethyst in a dying star 13.11.2020

On Earth, amethysts can form when gas bubbles in lava cool under the right conditions. In space, a dying star with a mass similar to the Sun can create a structure that rivals these beautiful gems in terms of attractiveness.

When stars like the Sun burn their fuel, they shed their outer layers and the core of the star shrinks. Using NASA's Chandra X-ray Observatory, astronomers have detected a bubble of superhot gas at the center of one such outflowing star, a planetary nebula in our galaxy called IC 4593. Located about 7800 light-years from Earth, IC 4593 is the most distant planetary nebula detected by Chandra.

In this new image of IC 4593, Chandra's magenta X-rays are reminiscent of amethysts. The bubble discovered by Chandra is a gas heated to over a million degrees. These high temperatures were likely caused by material that had torn off the star's shrunken core and slammed into gas that had previously been ejected by the star.

This composite image also contains visible light data from the Hubble Space Telescope (pink and green). The pink areas in the Hubble image are an overlap of radiation from a colder gas made up of a combination of nitrogen, oxygen, and hydrogen, while the green radiation is mostly due to nitrogen.

IC 4593 is what astronomers call a "planetary nebula," which sounds deceptive because this class of objects has nothing to do with planets. The name was given about two centuries ago because they looked like the disk of a planet when viewed through a small telescope. In fact, a planetary nebula forms when the interior of a star with about the mass of the Sun contracts and its outer layers expand and cool. As for the Sun, its outer layers could extend into the orbit of Venus during its red giant phase several billion years into the future.

Other interesting news:

▪ ON Semi Launches New 600V N-Channel MOSFETs

▪ Miniature Particle Accelerator Powering the Laser

▪ Phone guide

▪ Wash without powder

▪ Android smartphone becomes a listening device

News feed of science and technology, new electronics

Interesting materials of the Free Technical Library:

▪ section of the site Interesting facts. Selection of articles

▪ article by Euclid. Biography of a scientist

▪ How is a cyclone different from an anticyclone? Detailed answer

▪ Kasatik article. Legends, cultivation, methods of application

▪ article Amplifier on 6H13S lamps. Encyclopedia of radio electronics and electrical engineering

▪ article Radio receiver for giving. Encyclopedia of radio electronics and electrical engineering

Leave your comment on this article:

All languages of this page

Home page | Library | Articles | Website map | Site Reviews