LECTURE No. 22. Rights and obligations of notaries. Salaries of notaries

1. Powers of a notary

The totality of legally enshrined powers granted to a notary make up his competence, which is divided into: subject and 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. For example, Art. 56 of the Fundamentals provides that an agreement on the construction of a residential building on an allotted land plot is certified by a notary at the place of allotment of the land plot.

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 addition, it must be taken into account that, according to Art. 109 of the Fundamentals, if an international treaty of the Russian Federation establishes other rules on notarial acts than those provided for by the legislative acts of the Russian Federation, the rules of the international treaty apply when performing notarial acts. And in the case when an international treaty of Russia refers to the competence of a notary the performance of a notarial action not provided for by Russian legislation, the notary performs this notarial action in the manner established by the Ministry of Justice of the Russian Federation.

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 notarial acts. A notary can either draw up a draft of the transaction himself or certify an already finished draft. When drawing up a project, the notary makes sure that the terms of the contract comply with the law or do not contradict it, otherwise any inaccuracy or ambiguity may become a reason to challenge this document. When drafting a transaction, the notary discusses each point of the transaction with the client. It is important that notarial acts can be performed by a notary for all individuals and legal entities, when the legislation does not provide for a mandatory notarial form for a transaction. Individuals and legal entities, by agreement among themselves, have the opportunity to certify with a notary any transaction that does not contradict Russian law;

3) demand from individuals and legal entities information and documents necessary for the performance of notarial acts. If the missing documents can only be issued directly to the person who applied to the notary, then the notary does not request them, but offers to present them, explaining the procedure for obtaining them. When information can only be provided upon request, the notary draws up an appropriate request. The notary is obliged to check the documents submitted by citizens for the notarial act, since the notary himself is responsible for the notarial act.

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. If this rule is violated, then the action is considered invalid.

2. 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) fulfill their duties in accordance with 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 and other regulatory legal acts of the Russian Federation, including international treaties and oaths;

4) to keep secret information that became known to him in connection with the implementation of his professional activities. Each notary, upon appointment to office, solemnly swears to keep professional secrecy. The court may release a notary from the obligation to maintain secrecy if a criminal case has been initiated against the notary in connection with the performance of a notarial act. Copies of documents kept by a notary may be issued only to persons who participated in the performance of a notarial act, or to those in respect of whom they were performed;

5) refuse to perform a notarial act in case of its inconsistency with the legislation of the Russian Federation or international treaties. Since before performing a notarial act, the notary must check whether the infringement of human rights and freedoms is allowed, whether the document provides for a violation of the inviolability of the person, whether the will of the citizen is accurately expressed in the document certified by the notary, whether there was violence and threats from third parties, and other questions. When issuing a decision to refuse to perform a notarial act, the notary is obliged to indicate the reasons for the refusal. A citizen who has received a notary's refusal to perform a notarial act has the right to apply to the court;

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.

Insurance of the activities of notaries engaged in private practice is organized by notary chambers in order to ensure the economic protection of the client from illegal actions of a notary. The damage caused by the notary is indemnified primarily in the amount of the sum insured. If the damage exceeds this amount, recovery in accordance with civil law is levied on the property of a notary engaged in private practice.

Author: Nevskaya M.A.

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