Advocacy and notary office. Rules for performing notarial acts (lecture notes)

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Advocacy and notary office. Rules for performing notarial acts (lecture notes)

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LECTURE No. 23. Rules for performing notarial acts

Chapter 9 of the Fundamentals of the legislation of the Russian Federation on notaries establishes the basic rules for performing notarial acts. It should be borne in mind that 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 are adopted when notarial acts are performed.

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. In the case when, in accordance with Russian legislation, a notarial act must be performed in a certain notary office, the place of its performance is determined in the manner established by the Ministry of Justice of the Russian Federation. At the place of opening of the inheritance, the notary accepts applications for accepting or refusing the inheritance, claims from the testator's creditors, and also, upon notification of citizens, legal entities, or on his own initiative, takes measures to protect the inheritance property, when necessary in the interests of the heirs, legatees, creditors or states. A certificate of ownership of a residential building, apartment, cottage, garden house, garage, as well as a land plot is issued by a notary at the location of this property. Acceptance of monetary amounts and securities as a deposit is carried out by a notary at the place of fulfillment of the obligation;

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 (for example, when a citizen applies for a certificate of inheritance, the notary requires the presentation of all documents confirming the property of the testator) and if documents are sent for examination. The notary makes a decision on sending the document for examination. If it is necessary to ask the interested parties that they have no objections to the performance of these actions, the performance of the notarial act shall be postponed without fail. In some cases, the legislator directly provides for the obligatory obtaining of consent to the performance of a notarial act. Thus, minors aged 14 to 18 make certain transactions only with the written consent of their legal representatives. The period of postponement may not exceed 1 month from the date of issuance of the decision to postpone the performance of a notarial act. If, after a month, the circumstances preventing the performance of a notarial act are not eliminated, the notary has the right to refuse to complete the transaction.

At the request of an interested person who disputes a right or fact in court, for whose certification another interested person has applied, the performance of a notarial act may be postponed for a period of not more than 10 days. If within this period a notification is not received from the court about the receipt of the application, the notarial action must be performed, if the court receives a notification about the application of the interested person, then the performance of the notarial action is suspended until the case is resolved by the court.

Legislation may establish other grounds for the postponement and suspension of notarial acts;

3) establishing the identity of the person applying 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 a representative of a legal entity. Identification is carried out on the basis of a passport or other documents that exclude any doubts regarding the identity of the citizen who applied for a notarial act. Thus, the identity of a minor is established on the basis of a birth certificate or on the basis of an entry in the parents’ passports, the identity of a military personnel - on the basis of an identity card or military ID issued by the command of military units and military institutions, the identity of foreign citizens and stateless persons living in the territory of the Russian Federation - by a residence permit in Russia or a national passport with a mark of registration with the internal affairs bodies or other authorized bodies. If a representative applies for a notarial act, he must have a notarized power of attorney to perform these acts, which must indicate the address of the representative;

4) checking the legal capacity of citizens and the legal capacity of legal entities participating in transactions. When certifying transactions, the legal capacity of citizens is determined and the legal capacity of legal entities participating in transactions is verified. Civil capacity arises in full upon reaching the age of majority, therefore the notary requires a document indicating the age of the participant in the transaction (with the exception of emancipation).

If a citizen, due to a mental disorder, cannot understand the meaning of his actions or control them, he may be recognized by the court as incompetent. Only the guardian on behalf of this person has the right to make transactions. A citizen may be of limited legal capacity if, due to the abuse of alcohol or drugs, he puts his family in a difficult financial situation. Trusteeship is established over him, and this citizen has the right to make only small household transactions.

When checking the legal capacity of a legal entity, the notary gets acquainted with the constituent documents, checks whether the performed notarial action corresponds to the rights of the legal entity, clarifies the powers of its representative, which are confirmed by a power of attorney issued in his name from the heads of legal entities who are granted the right to conclude transactions by the charter, constituent agreement, regulation ;

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. Documents drawn up in a notarial order are signed in the presence of a notary. If a citizen, due to physical disabilities, illness, or for some other reason (for example, illiteracy), cannot personally sign, then on his behalf, in the presence of him and a notary, another citizen can sign a transaction, application or other document, indicating the reason why the document could not be signed personally by a citizen;

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. If a notary sees these shortcomings when checking documents, then he refuses to perform a notarial act and invites the citizen to contact the organization that issued this document in order for it to certify the changes (as a rule, it is written "corrected to believe" and the organization's seal is put) . The text of notarized transactions must be written clearly and clearly, the numbers and terms related to the content of the document are indicated at least once in words, and the names of legal entities - without abbreviations, indicating the addresses of their bodies (if necessary - also the number of the current (settlement) account and bank branches). Surnames, names and patronymics of citizens must be written in full, indicating their place of residence. When certifying transactions on behalf of foreign citizens, their citizenship is also indicated. In a document, the volume of which exceeds one sheet, the sheets must be bound, numbered and sealed.

If the document to be certified or attested is stated incorrectly or illiterately, the notary offers the applicant to correct it or draw up a new one;

7) making certification inscriptions and issuing certificates. When certifying transactions, attesting the accuracy of copies of documents and extracts from them, the authenticity of a signature on documents, the accuracy of translation of documents from one language to another, when certifying the time of presentation of documents, certification inscriptions are made on the relevant documents. The certification inscription is proof that everything stated in the document corresponds to the will of the parties and the law. The text of the certification inscription is approved by the Ministry of Justice of the Russian Federation. An appropriate certificate is issued by a notary to confirm the right of inheritance, property rights, certification of the facts of the citizen being alive and in a certain place, the identity of the citizen with the person depicted in the photograph, acceptance of documents for storage;

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 (parents, children, grandchildren). This is due to the fact that if a notary pursues personal interest when performing a notarial act, then he will not be objective. In the case when, in accordance with the legislation of the Russian Federation, a notarial act must be performed in a certain notary's office, the place of its performance is determined in the manner established by the Ministry of Justice of the Russian Federation;

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 authority has applied for a notarial act;

c) if a transaction made on behalf of a legal entity is contrary to the goals specified in its charter or regulation;

d) the documents submitted for the notarial act do not comply with the requirements of the law.

The notary, at the request of the person who has been refused to perform a notarial act, sets out the reasons for the refusal in writing and explains the procedure for appealing it. At the same time, the notary, no later than within ten days from the date of application for the performance of a notarial act, issues a decision on the refusal to perform a notarial act.

The resolution shall indicate: the date of issuance of the resolution, the surname and initials of the notary who issued the resolution, the surname, name, patronymic of the citizen who applied for the notarial act, his place of residence (name, address of the legal entity), the type of notarial act that the applicant requested, the reasons for the refusal to perform a notarial act, as well as the procedure and terms for appealing the refusal;

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. Each notarial action performed by a notary is assigned a separate serial number. The number under which the notarial action is registered in the register is indicated in the documents issued by the notary and in the certification inscriptions.

The forms of the indicated registers of registration of notarial acts, notarial certificates, certification inscriptions on transactions and certified documents are established by the Ministry of Justice of the Russian Federation.

Author: Nevskaya M.A.

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