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Lecture notes, cheat sheets
Advocacy and notaries. Lecture notes: briefly, the most important
Directory / Lecture notes, cheat sheets Table of contents
LECTURE No. 1. Advocacy: concept, role in society, basic principles 1. Advocacy and its appointment in society According to Part 1 of Art. 45 of the Constitution of the Russian Federation, the state guarantees the protection of human and civil rights in the Russian Federation. Another constitutional norm (Article 46) establishes guarantees for judicial protection of the rights and freedoms of a citizen. These constitutional principles are embodied by the criminal procedural legislation in a number of norms of the Code of Criminal Procedure of the Russian Federation, in which the main role in protecting citizens, including on a free basis for citizens, in pre-trial and judicial criminal proceedings, is assigned to the bar. 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. This is how it was for a long time, and this vast area of activity of the legal profession will be discussed below in some detail. 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. In accordance with Part 1 of Art. 3 of the Federal Law of the Russian Federation of May 31, 2002 No. 63 FZ "On advocacy and advocacy in the Russian Federation" advocacy the professional community of lawyers is recognized, which is an institution of civil society that is not part of the system of state authorities and local governments. This interpretation is the official definition. The legislator pointed out that the bar is an institution of civil society. The concepts of "advocacy" and "civil society" have a very deep constitutional and legal content, despite the fact that these terms themselves are not used in the text of the Constitution of the Russian Federation. 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 dated 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. It is no coincidence that it is the lawyer who opposes the public prosecutor in criminal proceedings. Ensuring the equality of rights of a lawyer and a representative of the state corresponds to ensuring the equality of the bar and the state in the protection of human and civil rights. 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, according to which Russia is a state of law (Art. 1), as well as in order to protect the right to free development of a person (Art. 7), ensure ideological diversity and equality of public associations before the law (Art. 13) the bar is also an institution that is obliged to ensure the protection of the rights of civil society, to be its representative and defender in the public law sphere in the face of the state. 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. These norms of the Constitution refer to the foundations of the constitutional system and include, as a matter of course, the protection of civil society as a component of the protection of human and civil rights and freedoms and, accordingly, the obligation of the bar as an institution of civil society independent of the state to protect civil society, human rights and freedoms. 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) legality; 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 of regulatory legal acts of the Government of the Russian Federation and federal executive bodies regulating the specified activities, as well as from the laws and other normative acts of the constituent entities of the Russian Federation adopted within the powers established by this Federal Law. In addition, the bar associations themselves are created exclusively in strict accordance with the law. Lawyers in their activities must be guided by the law and comply with the legitimate requirements of state bodies and officials (Article 15 of the Constitution of the Russian Federation). The principle of independence characterized by the fact that the bar is not included in the system of state authorities and local governments. A lawyer in the exercise of advocacy cannot be bound by any orders, instructions and other forms of influence on him by the bodies of the legal community, legal education, or other external factors. He is an independent figure in the choice of forms and methods of protection or other types of legal assistance, based only on the law and the will of his principal, if it does not contradict the law. 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. All matters related to the creation and activities of the bar are managed by the lawyers themselves, either directly or by electing management bodies that operate on the basis of internal regulations adopted only by lawyers (charters, regulations, contracts, etc.). This principle is a consequence of the non-state nature of the legal profession. The most important issues in this area are resolved by the bodies of lawyer self-government. 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. Absolutely all lawyers are obliged to obey corporate rules. In turn, the corporation stands guard over the rights and legitimate interests of its members, acting as their representative in any state or other bodies and organizations. 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. When solving their internal corporate tasks, each lawyer enjoys the right to only one vote, regardless of his length of service, or age, or the amount of money he earns. "Internal labor regulations", labor discipline requirements and other categories of labor law cannot be applied to lawyers, since their activities do not have the nature of work under an employment contract or another nature regulated by labor legislation. 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. He is obliged to constantly improve his knowledge, raise the level of professionalism and monitor his own reputation. LECTURE No. 2. The origin of the legal profession 1. Organization and functions of the bar in the countries of the Anglo-Saxon system of law In England The human rights profession is divided into two separate groups: barristers (lawyers) and solicitors (attorneys). Each of them performs its own duties, although they also have some common functions. Initially, barristers were random henchmen of litigants who, on their own initiative, gave them advice and were gradually recognized by the courts as persons who could be "on council" (of counsel) with litigants. However, over time, the right to "calling to the bar", i.e. to clothe candidates with the title of barrister, is exercised by four powerful corporations (guild schools), which are collectively known as "Inns of Court". These include Lincoln's Inn, Middle Temple, Inner Temple, and Gray's Inn. These corporations, headed by elected elders, enjoy complete self-government, and there is virtually no Act of Parliament now that would subject them to any control. Today a barrister has essentially no other cases than those given to him by a solicitor, unless he is called in by the Crown or some corporation. A successfully practicing barrister can increase his status. To do this, he must apply to the Lord Chancellor with a request to petition the Queen to raise him to the rank of Queen's Counsel. The Queen's Counsel are the elite barristers from which judges of the High Court and county courts are selected. A QC must have been a barrister for at least 10 years. Solicitors appeared in the XNUMXth century. in connection with the courts of justice and began to deal with petitions (to solisit - to petition) in cases of litigants who had to wait a long time at the reception of the chiefs of the Chancery Court. Historically, the profession of solicitor arose from a merger of attorneys at the common law courts, solicitors at the Chancellor's Court, proctors of the old ecclesiastical courts and clerks. Today, a solicitor is an independent lawyer, personally or in cooperation with other solicitors, advising his clients on legal issues. He handles their real estate business, draws up contracts and wills, takes over the management of ancestral property and advises on taxation, insurance, competition and business. In addition, solicitors are empowered to take the necessary steps to initiate legal proceedings. The Royal Commission on Law, which has been studying the pros and cons of the merger of both legal professions for several years, has come to the final conclusion that the existing system should be preserved. The Commission also examined the numerous norms of "codes of conduct" for barristers and solicitors, which restrict competition between them, and found that they were in full accordance with the public interest. USA. England had the strongest influence on the formation of the American judicial system. Some US states (New York, New Jersey, Massachusetts, Virginia), following the example of dividing English lawyers into barristers and solicitors, have introduced ranks and classes of lawyers that are vaguely reminiscent of the English system. However, in the middle of the XIX century. these differences were leveled, and the only category of human rights activists left in the United States was lawyers. The first American university with a separate faculty of law was Harvard, and the first teachers at Harvard Law School were lawyers and judges. J. Storey, member of the US Supreme Court, rector of the Harvard Law School, who introduced the term "private international law" into legal circulation, radically changed the procedure for selecting teachers and, first of all, began to focus on legal theorists. J. Storey practiced the precedent method in teaching students. By the XNUMXth century Harvard's case-based method of training law students has become widespread. Law schools gradually supplanted the practical training system leading to the bar. In 1981, the American Bar Association authorized 181 law schools to train lawyers. There are currently more than 200 law schools. Although they have different names, their curricula are very similar, they have the same requirements for applicants: in order to enter law school, you must graduate from college and pass a test. This test has been in operation since the 1950s. The best nationwide American law schools: Harvard, Yale, Chicago, Stanford, Berkeley. The American Bar Association did not have a strict and consistent organization until 1870. The first modern bar organization was the New York Bar Association. Somewhat later, in 1878, a national community was formed - the American Bar Association. 2. History of the Russian Bar For the first time, judicial representation is mentioned in Russian legislative acts of the XNUMXth century. (Pskov and Novgorod judicial charters). Judicial representatives of that era can be conditionally divided into two groups: natural representatives and hired ones, from which the institution of professional attorneys gradually began to form. In the Sudebniks 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. However, it was not part of the court, but enjoyed self-government, although under the control of the judiciary. The introduction of the Judicial Regulations revealed a clearly insufficient number of sworn attorneys, and in 1874 a law was passed that established, along with the sworn advocacy, the institution of private attorneys. 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. All undefeated persons of both sexes enjoying civil rights were admitted as defenders and accusers, but no special defense organization was created. 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." Advocacy was declared a public function, that is, it was supposed to protect the interests of the working people. In the Russian state of the post-revolutionary period, serious deviations from the rule of law increasingly took place. In certain periods, the legal profession in general, and the advocacy in particular, did not find proper application for themselves. 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, consisting primarily of people's courts, provincial courts and the Supreme Court of the RSFSR. 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. Since 1936 the situation began to change. And although lawyers were still recognized as a necessary evil, they understood that they could not be dispensed with. 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 regulation provided for the organization of the legal profession in the form of regional, regional and republican collegiums, which was maintained until the adoption on May 31, 2002 of Federal Law No. 63 FZ "On advocacy and advocacy in the Russian Federation." The first attempt to return the former independence of the bar was made in the Regulations on the bar in 1962. In the late 1970s. there was a further development of the issues of the legal justification of the bar as an institution. In Article 161 of the Constitution of the USSR of 1977, the bar was for the first time officially recognized as a constitutional body. 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. These documents clearly defined the new rights and obligations of lawyers, although they did not introduce fundamental changes in the structure of the bar. In 1986-1988 a "corporate boom" took place in the country: cooperatives began to appear in all areas of activity. The first legal cooperatives began to emerge, which, however, were not perceived by the public as something positive. At the same time, a kind of struggle was going on between the Ministry of Justice of the Russian Federation and the bar over the draft law on the bar. The result of this almost ten-year struggle was Law No. 63 FZ "On Advocacy and Advocacy in the Russian Federation", the adoption of which on May 31, 2002 marked a new stage in the development of the Russian advocacy. LECTURE No. 3. Lawyer and his professional activities 1. Status of a lawyer 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. In addition, the specified person must submit the relevant documents to the qualification commission for admission to the qualification exam. The status of a lawyer is assigned after passing the exam at the request of the applicant, which must be submitted within three months. The qualification commission, within seven days from the date of the adoption of the relevant decision, notifies the territorial body of justice that the applicant has been granted the status of a lawyer, which, within a month from the date of receipt of the notification, enters information about the lawyer into the regional register and issues the corresponding certificate to the lawyer. The general procedure for entering information about a lawyer into the register is regulated by Art. 15 of the Law on Advocacy. A lawyer has very broad powers in the exercise of his duties related to the protection and representation of citizens and organizations. Some of these powers are directly specified in the Federal Law on the Bar. Others are contained in the norms of constitutional, civil, arbitration, administrative and criminal proceedings. The document certifying the powers of an attorney to execute an assignment in cases established by law is an order issued by the bar association in which the attorney carries out his activities. Unless a warrant is required by the relevant law, a lawyer may represent a principal only on the basis of a power of attorney. The duties of a lawyer in a general form are set out in Art. 7 of the Law on Advocacy. In particular, a lawyer is obliged to honestly, reasonably and in good faith defend the rights and legitimate interests of the principal by all means not prohibited by the legislation of Russia. Lawyers, in assisting their clients, have a duty to seek respect for human rights and fundamental freedoms recognized by national and international law. They must at all times act freely and assertively in accordance with the law and recognized professional standards and ethical norms, always being loyal to the best interests of their client. The law specifically highlights the obligation of a lawyer to mandatory participation as a defense counsel in criminal proceedings by appointment, as well as the provision of legal assistance to citizens provided for by law free of charge. Lawyers are obliged to comply with the Code of Professional Ethics and implement the decisions of the bodies of lawyers' self-government - the Chamber of Lawyers of the subject of the Russian Federation, of which they are mandatory members, as well as the Federal Chamber of Lawyers. In addition, it is determined that a lawyer is obliged to make deductions from his remuneration for the general needs of the bar association and for the maintenance of the bar association in which he carries out his activities. On January 1, 2007, the provision on mandatory insurance by a lawyer of the risk of his professional property liability came into force (Article 7 of the Law on the Bar). Professional liability insurance is a rather specific branch of insurance, associated with special risks. For non-fulfillment or improper fulfillment of his/her professional duties, a lawyer shall be liable under the Law on the Bar, up to and including termination of the status of a lawyer. The Council of the Chamber of Advocates considers complaints about the actions or inaction of an advocate, taking into account the conclusion of the qualification commission. One of the tasks of the latter is to consider these complaints and give opinions on the presence or absence in the actions (inaction) of a lawyer of a violation of the norms of the code of professional ethics of a lawyer, on non-fulfillment or improper fulfillment of his duties. A lawyer does not have the right to disclose any information communicated to him by a client in connection with the provision of legal assistance without the consent of the latter (lawyer secrecy). In this regard, the lawyer is not subject to summons and interrogation as a witness about the circumstances that became known to him in connection with the appeal to him for legal assistance or its provision. It is prohibited to carry out operational-search activities that jeopardize the preservation of attorney-client secrecy, if there is no corresponding court decision. 2. Advocacy 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 concept of "advocacy" first appeared in the Federal Law "On Advocacy and Advocacy in the Russian Federation". In the earlier Regulations on the Bar of the RSFSR, such a concept was not given, which led to a rather broad interpretation of lawyers' participation in the life of society. 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 that is not related to qualified legal assistance cannot be recognized. It is not an advocacy activity, although related to the provision of qualified legal assistance, but provided by persons who do not have the status of a lawyer obtained in the manner prescribed by law. It is also not advocacy if it is carried out by a person, although he has the status of a lawyer, but is not related to the protection of the rights, freedoms and interests of the applicants, as well as ensuring access to justice. For example, advocacy related to private detective work, protection of one's principal, making commercial inquiries about the client's partner, and performing other functions in the interests of the principal cannot be recognized. A lawyer is not entitled to perform such duties on a paid basis. 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. Providing legal assistance, a lawyer: 1) gives advice and information on legal issues both orally and in writing; 2) draws up applications, complaints, petitions and other documents of a legal nature; 3) represents the interests of the principal in constitutional proceedings; 4) participate as a representative of the principal in civil and administrative proceedings; 5) participates as a representative or defender of the principal in criminal proceedings and proceedings in cases of administrative offenses; 6) participates as a representative of the principal in the proceedings in the arbitration court, international commercial arbitration (court) and other conflict resolution bodies; 7) represents the interests of the principal in public authorities, local governments, public associations and other organizations; 8) represents the interests of the principal in public authorities, courts and law enforcement agencies of foreign states, international judicial bodies, non-state bodies of foreign states, unless otherwise provided by the legislation of foreign states, statutory documents of international judicial bodies and other international organizations or international treaties of the Russian Federation; 9) participates as a representative of the principal in enforcement proceedings, as well as in the execution of criminal punishment; 10) acts as a representative of the principal in tax legal relations. 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. LECTURE No. 4. Organization of advocacy 1. 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. On the territory of a constituent entity of the Russian Federation, only one bar association may be formed, which is not entitled to form its own structural subdivisions, branches and representative offices in the territories of other constituent entities of the Russian Federation. Direct advocacy activities are carried out in advocacy formations. The Law on the Advocacy provides only four organizational and legal forms of legal entities: a lawyer's office, a bar association, a lawyer bureau and a legal consultation office. 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. The Bar Association is a non-profit organization operating on the basis of a constituent agreement and charter. Members of the Bar Association are not liable for its obligations, the Bar Association is not liable for the obligations of its members. However, the bar association bears the liability stipulated by the legislation of the Russian Federation for non-fulfillment or improper fulfillment of the duties of a tax agent or representative, which is in relation to founding lawyers. 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. Comparison of Art. 22 and Art. 23 of the Federal Law "On Advocacy and the Bar" allows us to conclude that it is necessary to conclude two agreements: a constituent agreement in order to determine the procedure and basic conditions for the joint activities of lawyers to create an office and a partnership agreement to establish the mutual rights and obligations of lawyers in the joint implementation of advocacy activities. The provisions of the partnership agreement must comply with the charter and the memorandum of association. The partnership agreement must be concluded for a certain period of time. According to paragraph 7 of Art. 23 of the Law on the Bar, from the moment of termination of the partnership agreement, its participants are jointly and severally liable for unfulfilled general obligations in relation to principals and third parties. 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. According to paragraph 2 of Art. 120 of the Civil Code of the Russian Federation, a legal advice office is liable for its obligations with the funds at its disposal received from the founder or from other legal sources. In case of their insufficiency, the bar association as the owner of the property that established this consultation bears subsidiary responsibility (Article 399 of the Civil Code of the Russian Federation). 2. Professional ethics of a lawyer A lawyer, as a member of an independent organization, must in every possible way strengthen the honor and dignity of the lawyer corps, observe the rules of lawyer ethics not only in the performance of lawyer duties, but also in everyday life, in public life, be aware of his legal and moral obligations in relation to a particular client and society as a whole. He can adhere to any ethical doctrine, but for him one system of values, one choice of standards of behavior is possible. First of all, the activity of a lawyer is to provide qualified legal assistance to citizens and legal entities. 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. In Russia there is also regulatory regulation of basic ethical standards in legal practice. In particular, the first All-Russian Congress of Lawyers on January 31, 2003 adopted the Code of Professional Ethics for Lawyers. This document establishes mandatory rules of conduct for every lawyer in the practice of law, based on the moral criteria and traditions of the legal profession, as well as on international standards and rules of the legal profession. The behavior of a lawyer as a set of acts of professional behavior that have moral significance, since they can be subjected to moral assessment, is subject to the legal and moral foundations that determine the essence of the profession of lawyer. The need to articulate the principles that make up the essence of lawyer ethics is determined by nature itself, its purpose and real influence in society. In his book "Advocate Ethics" M. Yu. Barshchevsky singles out three basic principles of the legal profession: honesty, competence and integrity. They manifest themselves in various aspects of advocacy: when advising clients, in court, other public speaking, in relationships with colleagues, with the judicial administration, in a situation of conflict of interest. Honesty in advocacy involves: 1) a 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. The competence and conscientiousness shown by a lawyer in the performance of his professional duty are essential components that form the high quality and professionalism of the assistance provided to him. 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 ensure that provide qualified assistance to the client in the shortest possible time and with the maximum consideration of the interests of the latter, namely: 1) respond with reasonable promptness to all professional correspondence, as well as punctuality in the performance of all other professional obligations; 2) inform the client about a reasonable delay in the provision of legal assistance or other circumstances that prevent him from properly protecting his interests; 3) the facts of non-appearance of a lawyer in court without a good reason and systematic delays in court sessions are unacceptable. LECTURE No. 5. Participation of a defense counsel in a criminal case at the stage of preliminary investigation 1. Strategy and tactics of the work 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 protection functions 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 conducting the investigation in order to best respect the rights and interests of the client; 5) establishing contact with a representative of the injured party, working out possible cases of compromise (peaceful regulation); 6) appeal against the actions of officials of law enforcement agencies; 7) conducting a lawyer's investigation in order to establish information unknown to the investigation and contributing to the establishment of objective truth; 8) analysis of evidence in terms of admissibility, relevance, reliability, sufficiency; 9) participation in the process of proving during the consideration of the case in court; 10) formation of protective speech; 11) appeal against court decisions if there are grounds provided for by law; 12) participation of a defense counsel in higher judicial instances. According to part 3 of Art. 86 of the Code of Criminal Procedure of the Russian Federation, a lawyer is subject of proof. He has the right to collect evidence by: obtaining objects and other information; interviewing persons with their consent; requesting certificates, characteristics, various documents from state authorities, local governments, etc. 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. The defender-lawyer directs his efforts to proving the circumstances relating to the innocence of the client in the commission of the crime, the characteristics of his personality, the elimination of crime and the punishability of the act, the mitigation of punishment, as well as those that may entail exemption from criminal liability and punishment (clauses 2, 3, 5 -7 part 1 article 73 of the Code of Criminal Procedure). 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. Features are also characteristic of defense tactics in court proceedings, primarily expressed in the work of a lawyer with evidence: all the information he collects must be presented to the court, included in the research process, investigated during the judicial investigation. In this way, the defender-lawyer refutes the accusation as a whole, its individual parts or episodes, confirms his position on the basis of the evidence presented by him to the court. 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 charged as an accused, then the lawyer does not need to start familiarizing himself with the case materials by studying the decision to bring the person as an accused. First of all, you should start studying the materials related to the prosecution of the person defended by the lawyer, carefully and carefully study the decision to bring him as an accused. This will make it possible to determine which volumes of the case materials and to what extent are to be studied. The petitions of the lawyer, declared upon acquaintance with the materials of the completed preliminary investigation, may be aimed at collecting evidence that is important for the defense of the accused, checking versions that refute the charge brought against the defendant, changing the qualification of the actions of the accused to a softer one, excluding certain episodes or parts from the charge. , stop the criminal case and criminal prosecution (clauses 1-3 of part 1 of article 24; part 3 of article 24 of the Code of Criminal Procedure). 2. 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 purpose of participation of a lawyer in criminal proceedings - implementation of defense, criminal procedural representation and support of private prosecution on behalf of the victim in cases of private prosecution (parts 1, 2 of article 20 of the Code of Criminal Procedure of the Russian Federation), as well as the provision of qualified legal assistance to the client and the principal. To do this, a lawyer is obliged to use the entire arsenal of means provided for by law, as well as other measures and means that do not contradict the law. 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, prisoner, 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). In addition, the law provides for the obligation of a lawyer to participate in a criminal case as a defense counsel by appointment of the bodies of inquiry, bodies of preliminary investigation, the prosecutor and the court, which are obliged to ensure his participation at the request of the suspect, accused, defendant (clause 10, article 25 of the Law on the Bar, Part 2, Article 50 of the Code of Criminal Procedure of the Russian Federation). 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 of 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 had assumed the defense of the named participants in the criminal proceedings, he would not have been 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. The procedural and legal aspects of an invitation, appointment, replacement, as well as waiver of protection are regulated by Art. 50, 52 Code of Criminal Procedure of the Russian Federation. According to their instructions, the defender is invited by the suspected, the accused, the defendants, and, on their behalf, also by other persons. The new criminal procedure law gives the suspect, the accused, the defendant the right to invite several defense lawyers (Part 1, Article 50 of the Code of Criminal Procedure of the Russian Federation). 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. The law provides for circumstances excluding the participation in a criminal case of a lawyer-defender and a lawyer-representative (clauses 1-3 of part 1 of article 72 of the Code of Criminal Procedure of the Russian Federation). The presence of at least one of the circumstances listed in this article gives the right to each of the participants in criminal proceedings established by law to challenge the lawyer. Democracy, humanism and fairness of the modern Russian criminal process is manifested in the fact that the criminal procedure law establishes the mandatory participation of a lawyer in criminal proceedings (part 1 of article 51 of the Code of Criminal Procedure of the Russian Federation). LECTURE No. 6. Participation of a defense counsel in a court of first instance in a criminal case 1. Activities of a defense counsel in a court of first instance in a criminal case Consideration of a criminal case in the court of first instance consists of several parts: preparatory, judicial investigation, debates of the parties, the last word of the defendant, the decision and pronouncement of the verdict. The listed parts predetermine the features of the criminal procedural activity of a lawyer at each of the named stages of the trial stage. 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. Preparation of a lawyer for a hearing involves his participation in the process of proving in a criminal case. 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. In the first part of the trial the defender, participating in the study of the evidence of the prosecution, checking their relevance, admissibility and reliability, must substantiate his position if he considers that the evidence presented is unacceptable. The defense then presents its evidence. 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. At the stage of judicial consideration, the defense counsel must seek the interrogation of the victim and the witness in the following cases: 1) if during the preliminary investigation they gave evidence incriminating the defendant in the commission of a crime, if their reliability is in doubt, and the defense counsel expects to refute them by interrogation and verification of the testimony; 2) if the witness has given or may give evidence that justifies or mitigates the guilt of the defendant. Naturally, the 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. In this case, success consists of four components: knowledge of law, logic of thinking, psychological approach and oratory. 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. When interrogating witnesses on the part of the defense, the lawyer should also actively participate in the proof. When pronouncing a sentence, the court evaluates the evidence according to its inner conviction, which depends on certain circumstances. So, inconsistency, confusion, falsity of the testimony of a witness can affect the conviction of the judge in a better way for the defense. Thus, with the right tactics and attentiveness of the lawyer, the witness may be distrusted. In this case, the defender must repeat what the witness has already said during the trial, then turn to his testimony at the pre-trial stages. The revealed contradictions will eventually serve the defense side. However, the contradictions themselves should not be announced immediately, it is better to resort to them in the debate. 2. 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 current legislation regarding the content of the debate indicates only that they should not be present (part 4 of article 292 of the Code of Criminal Procedure of the Russian Federation). Зdefense speech of a lawyer consists of two concepts: the generally established concept of "speech" and the legal concept of "protection". According to the Explanatory Dictionary of the Russian Language by S. I. Ozhegov speech is the ability to speak; conversation, conversation; public speaking. In turn, the defense, according to the same dictionary, is the defending party in a lawsuit. Thus, the judicial 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 citizen he is protecting. 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. Its practice is possible when the defense attorney and his client have no grounds to challenge the evidence of the accusation and the qualifications of the offense. Here, the main place in the defensive speech is given to the characterization of the personality of the defendant and the circumstances mitigating responsibility, as well as the causes and conditions that contributed to the commission of the crime. In this case, the lawyer must challenge the aggravating circumstances, question the need to apply additional punishment to the defendant, and also challenge certain provisions of the charge. In the final part, the lawyer must clearly formulate the request addressed to the court to impose a particular type of punishment; 2) position on changing the classification of the offense. This position occurs if the defendant admits that he has committed a crime, but the defense does not agree with the qualification. Here the lawyer’s attention is focused on analyzing the evidence from the point of view of qualifications. At the conclusion of the speech, the defense attorney must proceed to characterize the defendant’s personality, focus the court’s attention on circumstances mitigating responsibility, etc.; 3) position on the acquittal of the defendant. Her lawyer accepts it if the crime has not been established or there is no element in it, and the participation of the defendant in the commission of the crime has not been proven. In all cases, the lawyer is obliged to ask the court to acquit the defendant if he denies the event itself or his participation in the commission of the crime. The defender must follow the position of the defendant. The purpose of the defense speech of the lawyer doubly. 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 evaluation of the testimonies of witnesses depend on whose side he spoke. Here it is necessary to convince the court of whether or not it is worth trusting one or another 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 for 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. However, it is necessary to control your facial expressions and gestures, to prevent their immoderation. Speech should be decisive, confident, using analogies and vivid examples. LECTURE No. 7. Participation of a defense counsel in the stages of appeal, cassation and supervisory proceedings in a criminal case 1. 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. It is necessary to verify the presence or absence of contradictions between the parts of the act of justice, and especially between its descriptive-motivational and resolutive parts. The lawyer also receives information for analysis due to a thorough study of the minutes of the court session, the form and content of which are regulated by Art. 259 Code of Criminal Procedure of the Russian Federation. Next, the lawyer decides on the issue of cassation appeal of the verdict in full or in a certain part, and coordinates his decision on this with the client. The convicted person can agree with the lawyer’s decision to appeal the verdict in cassation or refuse to file a complaint. If the lawyer does not find grounds for a cassation appeal against the verdict, and the convicted person demands to file a complaint, then the will of the client is mandatory for the defense lawyer. Before the start of the court session, the lawyer has the right to withdraw, change or supplement the cassation appeal filed by him (parts 3, 4 of article 359 of the Code of Criminal Procedure of the Russian Federation). He submits it to the court that passed the verdict within 10 days from the date of its announcement (part 1 of article 356 of the Code of Criminal Procedure of the Russian Federation). 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). Supervisory complaints against court decisions that have entered into legal force, the lawyer sends to the judicial authorities in compliance with the instance established by Art. 403 Code of Criminal Procedure of the Russian Federation. Comprehending the content of the supervisory appeal, 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. The lawyer gives an analysis of all the violations he identified that were committed in pre-trial and judicial proceedings and led to the decision of unjust decisions in a criminal case. If the defense lawyer did not reveal violations or they were not committed during the investigation and consideration of the criminal case, then it is advisable for him to evaluate the appealed court decisions in terms of the fairness of the conclusions and decisions regarding the type and amount of the punishment imposed, the type of correctional labor or educational labor institution, in in which the convict is to serve his sentence, a satisfied civil claim, grounds for acquittal, etc. In reality, many sentences and rulings of 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 order supervision. Having recognized the lawyer’s supervisory complaint as justified, the judge decides to initiate supervisory proceedings and transfer the supervisory complaint to the supervisory court, together with the criminal case, if it was requested (clause 2, part 3, article 406 of the Criminal Procedure Code of the Russian Federation). 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). At the court session of the supervisory instance, the defense attorney has the right to give his oral explanations, substantiating in them the requirements for the annulment or amendment of court decisions that have entered into legal force. 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. 2. Participation of the defense counsel at the stage of execution of the sentence The Constitution of the Russian Federation guarantees everyone the right to receive qualified legal assistance, establishing 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 obtain legal assistance, convicts can use the services of lawyers, as well as other persons entitled to provide such assistance. Legal assistance at the stage of execution of punishment can be provided, for example, on the following issues: serving a criminal sentence, its procedure and conditions, application of incentives and penalties; further execution of the sentence and the possibility of parole, pardon or amnesty, etc. 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. Proposals, statements and complaints of those sentenced to arrest, detention in a disciplinary military unit, imprisonment, death penalty, addressed to the bodies specified in Part 4 of Art. 12 of the Penal Code of the Russian Federation, are sent through the administration of institutions and bodies executing punishment. Convicted to other types of punishments send proposals, applications and complaints independently. Such statements addressed to the bodies exercising control and supervision over the activities of institutions and bodies executing punishment are not subject to censorship and no later than one day (with the exception of weekends and holidays) are sent according to their affiliation. 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. This is an exemption from further serving a sentence, a reduction in the term of the sentence imposed on a convicted person, the replacement of a sentence imposed by a court verdict with a more lenient type of punishment, and the expungement of a criminal record. One of the types of replacing the imposed punishment with a more lenient one is the replacement of the death penalty with imprisonment. 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 petition of the convicted person is not sent directly to the court, but is transferred to the administration of the institution or body executing the punishment, which, before applying to the court, must carry out certain preparatory work. 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. At a court session, the first to speak is a representative of the institution or body that submitted the presentation, who reports on the essence of the issue, refers to the submitted documents, and gives a description of the convict. After that, the submitted materials are examined, the explanations of the persons who appeared at the court session, the opinion of the prosecutor, who has the right to participate in the session, are listened to. The issue is considered by the judge alone, after which the judge makes a decision. 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. LECTURE No. 8. Participation of a lawyer in the pre-trial stages of resolving civil disputes 1. Lawyer in civil proceedings The activities of a lawyer-representative in Russian civil proceedings are characterized by many features due to the organizational, legal and procedural legal status of a lawyer. Taken together, such features are expressed in the fact that the attorney-representative: 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 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. In particular, the Law on Advocacy provided the lawyer with a whole a number of very important procedural rights: 1) collect information necessary for the provision of legal assistance; 2) to interrogate, with their consent, persons allegedly in possession of information on the case in which the lawyer provides legal assistance; 3) collect and submit documents that can be recognized as evidence in the case; 4) on a contractual basis, engage specialists to clarify issues related to the provision of legal assistance; 5) to record the information, including by means of technical means, contained in the materials of the case in which he participates as a representative (clause 3, article 6). 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). Along with this, in relation to a lawyer as a special subject of representation in Russian civil proceedings, the law establishes various legal restrictions. In particular, a lawyer is not entitled to: accept an order from a person applying for legal assistance if it is obviously illegal; accept an order for the provision of legal assistance if he has an interest in the case that is different from the interest of the principal. A lawyer cannot accept an assignment to provide legal assistance if he participated in the case as a judge, arbitrator, arbitrator, mediator, prosecutor, investigator, interrogator, expert, specialist or is a witness or victim in the case. Ethical norms and the law prohibit a lawyer from taking a position in a case that is contrary to the will of the principal, and also, without the consent of the principal, to disclose information provided to him in connection with the provision of legal assistance (clause 4, article 6 of the Law on the Bar). The lawyer must honestly, reasonably and in good faith to defend the rights and legitimate interests of the principal by all means not prohibited by Russian law; constantly improve their knowledge, improve their qualifications, i.e. professional skills; to insure the risk of their professional property liability (clauses 2, 3, article 7 of the Law on the Bar). 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. 2. 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. After making sure that the client's order is legal, the lawyer takes over the case in court. At this stage, the lawyer performs the following legal actions in order to prepare for the trial: talks with the principal, finds out his intentions and requirements, studies the circumstances of the case, gives a legal assessment of the problem, reveals possible ways leading to the resolution of a legal dispute, determines the tactics of conducting a case in court . A necessary, as well as the initial element of the process of providing legal assistance is the preparation of a statement of claim. Suit - this is a demand addressed to the court for the administration of justice, the content of which is the request of the interested person (the plaintiff) to the alleged infringer of the right (the defendant). Chapter 12 of the Code of Civil Procedure of the Russian Federation "Filing a claim" defines the basic requirements for the form of a statement of claim, as well as cases of refusal to accept a claim and leaving it without movement. In other types of civil proceedings, a means of protecting a subjective right and a legally protected interest is a statement, the form and content of which are determined by Art. 124, 131, 267, 270, 271, 282, 302, 308, 314, 419, 424 Code of Civil Procedure of the Russian Federation. 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. During the same period, the representative lawyer collects information, requests certificates, characteristics and other documents from state authorities, local governments, organizations and public associations; interrogates, with their consent, persons allegedly in possession of information relevant to the case. In addition, it collects items and documents that can later be recognized by the court as physical and other evidence; determines who should be called to court as witnesses; whether there is a need to conduct an examination, to involve specialists in the case. 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. In the course of preparing for the conduct of the case, the representative lawyer draws up a dossier, i.e. a collection of documents, their copies, extracts and other materials necessary for the conduct of the case. 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. LECTURE No. 9. Participation of a lawyer in a civil proceeding 1. The activities of the defense counsel in civil proceedings The author A. M. Palkhovsky noted: “A lawyer in the construction and conduct of the process must play the role of an architect: he owns the plan, he owns the definition of the legal stability of the material used, he owns to determine the conditions of legal balance, it is his duty to manage the course of proceedings, he belongs to the last coup de maitre - a speech during and at the conclusion of the debate. The role of masons and plasterers, of course, must be assumed 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). The principle of competitiveness and equality of the parties underlies the trial. The scope of the rights and obligations of a lawyer at the stage of the trial of a civil case depends, on the one hand, on the relevant part of the trial, and on the other hand, on the granting of certain rights to him by the principal. Thus, the legal representative is not entitled to perform those actions for which he was not authorized, but he is obliged to act in the interests of the principal, solely on the basis of the law. Since purpose of a lawyer within the framework of this stage is the provision of legal assistance to the represented, insofar as the lawyer contributes to the solution of such a task of legal proceedings as the correct and timely consideration of a civil case. 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 have the right to make petitions related to the trial of the case: petitions for the exclusion from the process of the submitted written and material evidence that is not relevant to the case; petitions for the disclosure (review) of individual evidence; petitions for the attachment to the case of written and material evidence, audio or video recordings. Petitions must be reasonable and motivated, meet the requirements of the principal in the case. They are resolved by the court after hearing the opinions of other persons participating in the case. After the presentation of the case, the court shall hear explanations from the plaintiff and the third person participating on his side, the defendant and the third person participating on his side. Depending on the form of representation (alone or together with the principal), a representative lawyer can also give explanations, emphasizing legally significant circumstances and expressing the position of his principal on the case. At the same time, the persons participating in the case have the right to ask each other questions, and the judge has the right to ask questions to the persons participating in the case at any time when they give explanations (Article 174 of the Code of Civil Procedure of the Russian Federation). Then the court establishes the sequence of examination of the evidence and proceeds to the next stage of the judicial review of the case. After a study and a comprehensive assessment of the evidence, in the absence of statements from the persons participating in the case, their representatives about the desire to make additional explanations, the court proceeds to judicial debate. 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. 2. 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. According to A. A. Vlasov, the basis for the participation of a representative lawyer in proving is the existence of an agreement with the client. To eliminate the misunderstandings encountered in practice, he proposes to improve the warrant form of representation, provide for a specific list of the powers of a lawyer in court and enforcement proceedings, or simultaneously draw up an order and a power of attorney containing specific powers of a representative in the consideration of the case and the execution of the court decision. 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. Judicial evidence expressed in the procedural form provided for by law includes explanations of the parties and third parties, testimony of witnesses, written and material evidence, audio and video recordings, expert opinions (Article 55 of the Code of Civil Procedure of the Russian Federation). Evidence must have the properties of relevance and admissibility (Articles 59, 60 of the Code of Civil Procedure of the Russian Federation). The lawyer must ensure that the evidence presented to the court is relevant to the case. In addition, there are circumstances that, by law, must be confirmed by appropriate means of proof. Therefore, this circumstance also needs to be checked. Article 61 of the Code of Civil Procedure of the Russian Federation lists Circumstances under which the parties are exempted from the obligation to prove: 1) circumstances recognized by the court as generally known; 2) the circumstances established by a court decision that has entered into legal force in a previously considered case; 3) the circumstances established by the decision of the arbitration court that has entered into legal force; 4) a court verdict in a criminal case that has entered into legal force is obligatory for the court considering the case on the civil law consequences of the actions of the person in respect of whom the court verdict was passed, on the questions whether these actions took place and whether they were committed by this person. 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. The representative lawyer 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. In the courtroom or in a room specially equipped for this purpose, it is possible to play an audio or video recording, listen to explanations of the persons participating in the case, involve a specialist in this regard and appoint an examination, if necessary (Article 185 of the Code of Civil Procedure of the Russian Federation). 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. LECTURE No. 10. The activities of the defender at the stage of enforcement proceedings 1. Conditions for the participation of a lawyer in an appeal against decisions in civil cases The decision rendered by the magistrate may be appealed on appeal by the parties and other persons participating in the case to the appropriate district court through the magistrate. The appeal is filed within 10 days from the date of the decision of the justice of the peace, and its content is determined by Art. 322 Code of Civil Procedure of the Russian Federation. The basis for filing an appeal is the illegality and unfoundedness of the decision made by the justice of the peace, 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). Therefore, a representative lawyer acts in the same way as when considering a case in a court of first instance. Moreover, he can identify, obtain new evidence in the case, petition for their inclusion in the case and participate in their examination by the court of appeal. In accordance with paragraph 2 of Art. 325 of the Code of Civil Procedure of the Russian Federation, the persons participating in the case, their representatives are entitled to submit objections to the justice of the peace in writing regarding the appeal with the attachment of documents confirming these objections; the right to get acquainted with the materials of the case, with the received complaints and objections regarding them. 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. To do this, the representative lawyer must decide: whether there are grounds for appeal; in what volume and direction it is necessary to appeal the judicial decisions that have not entered into legal force. His activity in this direction begins with the study of the case materials, the protocol of the court session; establishing the circumstances that led to the issuance of an unjust decision; clarification of whether the principles of civil procedural law were violated, whether the norms of substantive and procedural law were correctly applied; whether the circumstances of the case were fully investigated. 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 representative lawyer reveals the gaps and violations, admitted, in his opinion, by the court of first instance, indicating the incorrectness of the appealed court decision, and shows how they affected the decision that did not enter into legal force; gives concrete grounds and motives, shaky conclusions and decisions of the court of first instance. 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). The filing of a complaint is preceded by the work of a representative lawyer to identify violations, in the presence of which a complaint is filed by way of supervision. 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. 2. The work of a lawyer at 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. The parties may either themselves exercise their rights and obligations in the process of enforcement of a writ of execution, or entrust participation in enforcement proceedings to their representative (Article 33 of the Federal Law of the Russian Federation "On Enforcement Proceedings"). Within the meaning of this Law, the representative of a party in enforcement proceedings may be any capable person who has duly executed powers to participate in enforcement proceedings in the interests of the person represented. Most often, representatives in enforcement proceedings are involved in order to obtain qualified legal assistance in the process of executing a writ of execution. Often representatives in enforcement proceedings are lawyers, employees of law firms, as well as other persons with the necessary legal knowledge. 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. Through bodies (officials) he exercises his powers in the enforcement proceedings of the Russian Federation, a constituent entity of the Russian Federation or a municipality (financial authorities, tax, customs, etc.). 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. However, there are cases when the debtor can fulfill the obligations assigned to him only personally. Then he is not entitled to act through a representative. So, in the execution of executive documents on the eviction of the debtor or the installation of the recoverer, the debtor is obliged to personally fulfill the duties assigned to him. 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 other words, in the presence of duly executed powers, the representative in accordance with Art. 31 of the Federal Law "On Enforcement Proceedings" has the right to get acquainted with the materials of enforcement proceedings, make extracts from them, make copies, submit additional materials, make petitions, participate in enforcement actions, exercise other rights belonging to the recoverer or debtor. At the same time, in part 2, the legislator fixes such administrative actions of the recoverer and debtor in enforcement proceedings, the right to perform 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 if the representative acts under an agency agreement or other agreement. An analysis of the law allows us to conclude that it does not list all the administrative actions of the parties in enforcement proceedings, which should be specifically specified in the document confirming the authority of the representative. So, it is necessary to specifically stipulate the right of the representative of the recoverer to refuse the property that is transferred to the latter according to the executive document, or from the debtor's property that was not sold after 2 months from the date of its sale on a commission or other basis, as well as at auction. In all cases, when a representative is involved in the enforcement proceedings, the bailiff is obliged to check the scope of his powers. LECTURE No. 11. The activities of a lawyer in the arbitration process 1. 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). An exception is the prosecutor, who cannot participate in civil proceedings through his representative, since, according to Art. 1 of the Federal Law of January 17, 1992 No. 2202-1 "On the Prosecutor's Office of the Russian Federation", the prosecutor directly participates in the consideration of cases by arbitration courts in accordance with the procedural legislation of the Russian Federation. Judicial representation has the right to exercise 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 for issuing a warrant for the powers of a lawyer to conduct a case in an arbitration court on behalf of a principal. In this way, lawyer in arbitration proceedings may represent trustee on the basis of either a warrant or a power of attorney. No one has the right to require the lawyer and his principal to present an agreement on the provision of legal assistance for the lawyer to intervene in the case. If the established procedure for formalizing the powers is not observed, the lawyer is not allowed by the court to participate in the process (clause 4, article 63 of the Arbitration Procedure Code of the Russian Federation). The legislator provided some restrictions on the participation of a lawyer in any given case. So, lawyers cannot be representatives in the arbitration court if there are obstacles for their participation in the process, provided for in subpara. 2 p. 4 art. 6 of the Federal Law "On advocacy and advocacy in the Russian Federation", namely: 1) if the lawyer has an independent interest in the subject matter of the agreement with the principal, different from the interest of this person; 2) if the lawyer participated in the case as a judge, arbitrator or arbitrator, mediator, prosecutor, investigator, inquirer, expert, specialist, translator, is a victim or witness in this case, and also if he was an official in whose competence the decision was made in the interests of this person; 3) if the lawyer is in a relationship or family relationship with an official who has taken or is taking part in the investigation or consideration of the case of this person; 4) if a lawyer provides legal assistance to a principal whose interests are contrary to the interests of this person. Judicial representative, executing the instructions of his principal in court, must, through his activities, contribute to the resolution of the problems of legal proceedings in arbitration courts, pursuing as the main goal of his activities the protection of the violated or disputed rights, freedoms and legitimate interests of his principal. In addition, the lawyer must assist the client in the exercise of the procedural rights granted to him and the procedural duties assigned to him. This is the main difference between judicial representation and civil representation, the main purpose of which, as follows from the content of Art. 182 of the Civil Code of the Russian Federation is the direct creation, change and termination of the civil rights and obligations of the represented person. 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, voluntary (or contractual) representation is distinguished, in which the person participating in the case independently elects his representative to conduct the case in court, as a rule, granting 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 Advocacy in the Russian Federation"), an agency agreement or an agency agreement, and legal representation when 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. 2. 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. They have an interest in the outcome of the case, so the law gives them the necessary procedural rights. 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 the repetition of the trial. However, the lawyer should take into account that only what was the subject of the judicial investigation earlier is re-examined. Therefore, new claims that were not filed in the court of first instance cannot be submitted to the court of appeal, no matter what expediency may be associated with them. 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. At this stage, the lawyer should take into account the fact that the filing of a cassation appeal against a judicial act by one of the judicial instances that took part in the consideration of the stated claim (first or appeal) does not mean that only the appealed judicial act is subject to verification. If the consideration of the case took place not only in the court of the first instance, but also in the court of appeal, then the semantic connection between the adopted judicial acts based on the results of the consideration of the case is obvious. The mutual connection of these acts is due not only to formal logic, but also to the arbitration procedural law (Articles 168-170, 271 of the Arbitration Procedure Code of the Russian Federation). The filing of a cassation complaint only against the appeal ruling does not exclude, but involves the revision along with it of the decision of the court of first instance. 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. The persons participating in the case, as well as other persons, on whose rights and obligations a judicial act has been issued, may apply for its revision if they reveal a significant violation of their subjective rights and legitimate interests as a result of the incorrect application by the arbitration court of the norms of substantive and procedural law. Under similar conditions, there may be an appeal by the prosecutor in cases where the arbitration procedural law allows for the possibility of his participation in the case (Article 52 of the Arbitration Procedure Code of the Russian Federation). 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. The danger of becoming an ordinary court exists only when the lower courts do not properly perform the functions assigned to them, do not ensure the unity of practice and do not convince the applicants of supervisory appeals, as well as the supervisory authority itself, that the legality of the adopted judicial act is ensured. 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. LECTURE No. 12. Activities of a lawyer in constitutional proceedings 1. 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. The Constitutional Court of the Russian Federation is authorized to make decisions in plenary sessions if there are at least 2/3 of the total number of judges, and in a chamber session - if there are at least 3/4 of its composition. The importance of the tasks facing the Constitutional Court of the Russian Federation is emphasized by the fact that lawyers or persons with a degree in law are allowed as representatives of the parties. Considering the high complexity of constitutional judicial control, both from the substantive and procedural points of view, the recognition of highly professional qualities for lawyers is of great importance for strengthening the role of the bar in protecting the rights and freedoms of citizens. 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. Therefore, the task of a lawyer in this matter is reduced to bringing a convincing legal and scientific argumentation of his position, to trying to help the court find the best scientifically based solution. In this case, the choice of tactics for defending the interests of the client is very limited. Here, the ability to model the situation and find a solution strictly justified by law is most valuable; 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. If during the sessions of the Constitutional Court of the Russian Federation the applicant or lawyer needs additional witnesses or documents, then he has the right to file a petition to call them or demand documents. The petition must be motivated, then the court, as a rule, satisfies it, since task of the Constitutional Court of the Russian Federation - establish the truth on the disputed issue. The lawyer needs to make sure that there are no circumstances preventing the consideration of the case in the Constitutional Court. Thus, the issue may not be within the jurisdiction of the Constitutional Court of the Russian Federation (Clause 1, Part 2, Article 40 of the Federal Code of Law of July 21, 1994 No. 1 - Federal Law on the Constitutional Court of the Russian Federation). If this is obvious, then the secretariat will notify the applicant of the refusal to accept the case for consideration. If the circumstances are not obvious, but are present, then the court itself makes a decision on this issue. It is also necessary to check whether a similar issue has not been considered before by the Constitutional Court. If the final decision was considered and made, then the Constitutional Court of the Russian Federation will refuse to accept the complaint, and if a similar case is already in production, it can merge them into one. The refusal to accept the case by the Constitutional Court of the Russian Federation does not preclude a repeated appeal to the court on the same issue, but only in the event of a significant change in circumstances. 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. 2. Participation of a lawyer in a meeting of the Constitutional Court of the Russian Federation and in legal proceedings to clarify the decision Judicial proceedings in the Constitutional Court of the Russian Federation take place, as a rule, on the basis of competition (with the exception of cases on the interpretation of the Constitution of the Russian Federation). 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. This applies both to addressing judges (“Your Honor”, “Dear Court”, “Dear Judge”, “Dear Presiding Officer”), and to the conduct of the case. A lawyer must take into account that in the Constitutional Court of the Russian Federation one cannot refer to documents and circumstances that were not examined by the Constitutional Court of the Russian Federation in a court session, one cannot make political statements, one cannot allow insulting statements in relation to state bodies and their officials, public associations and individual citizens. It needs to be made clear that Rules of the Constitutional Court of the Russian Federation prohibit judges interrupt someone's testimony with remarks or comments. 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 so that they can clearly state the facts and present documents in the required sequence. 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. As in any other process, the law provides the participants in the process with the right to get acquainted with the minutes and transcripts of the court session and bring their comments to it. The final and responsible stage of constitutional proceedings is the adoption of a decision by the Constitutional Court of the Russian Federation. Decisions made by the Constitutional Court of the Russian Federation are referred to as resolution, conclusion, definition. Resolutions are adopted on issues of resolving a case on compliance with the Constitution of the Russian Federation, federal laws, regulations of the President, the Federation Council, the State Duma, the Government; the constitutions of the republics; charters, as well as laws and other normative acts of the constituent entities of the Russian Federation; decisions on the interpretation of the Constitution of the Russian Federation and on a number of other fundamental issues within the competence of the Constitutional Court of the Russian Federation. Conclusion - this is the final decision of the Constitutional Court of the Russian Federation on the merits of the request for compliance with the established procedure for accusing the President of the Russian Federation of high treason or committing another serious crime. Definitions are all other decisions of the Constitutional Court of the Russian Federation adopted in the course of constitutional proceedings. 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). LECTURE No. 13. Activities of a lawyer in administrative proceedings 1. 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. Evidence in the case of an administrative offense - this is any factual data on the basis of which the judge, body, official in charge of the case establishes the presence or absence of an event of an administrative offense, the guilt of the person brought to administrative responsibility, as well as other circumstances that are important for the correct resolution of the case. These data are established by a protocol on an administrative offense, other protocols provided for by law, explanations of the person in respect of whom proceedings are being conducted on an administrative offense, testimonies of the victim, witnesses, expert opinions, other documents, as well as testimonies of special technical means, material evidence. Explanations of the person in respect of whom proceedings are being conducted on the case of an administrative offense, the testimony of the victim and witnesses are information relevant to the case and reported by the said persons orally or in writing. In cases where, during the proceedings on a case of an administrative offense, it becomes necessary to use special knowledge in science, technology, art or craft, the judge, body, official in charge of the case shall issue a ruling on the appointment of an expert examination. The definition is binding on the experts or institutions entrusted with the examination. The expert's opinion is not binding on the judge, body, official in charge of the administrative offense case, but disagreement with the expert's opinion must be motivated. When examining material evidence the lawyer must take an active position, especially he must be attentive when studying the documents. Documents are recognized as evidence if the information stated or certified in them by organizations, their associations, officials and citizens is relevant for the proceedings on an administrative offense. Documents may include photographic and filming materials, sound and video recordings, information databases and data banks, and other information carriers. 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. A case of 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 the 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 the imposition of an administrative penalty; 2) on termination of proceedings on the case of an administrative offence. 2. 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. In the event that a complaint against a decision in a case concerning an administrative offense has been submitted to the court and to a higher authority, to a higher official, it shall be considered by the court. 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. If for some reason the deadline is missed, then at the request of the person filing the complaint, it can be restored by a judge or an official authorized to consider the complaint. A ruling shall be issued on the rejection of a petition for the restoration of the term for appealing against a decision in a case concerning an administrative offense. 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. The legislator determines that one of the following decisions can be taken on the complaint: 1) on leaving the resolution unchanged, and complaints without satisfaction; 2) on changing the decision, if this does not increase the administrative penalty or otherwise worsen the situation of the person in respect of whom the decision was made; 3) on the annulment of the decision and on the termination of the proceedings on the case due to its insignificance or under the circumstances mentioned earlier when explaining why the proceedings on the case may be terminated or may not be started at all, as well as if the circumstances on the basis of which the decision was made were not proved; 4) on the cancellation of the decision and on the return of the case for a new consideration to the judge, body, official authorized to consider the case, in cases of significant violation of procedural requirements, if this did not allow for a comprehensive, complete and objective consideration of the case, as well as in connection with the need to apply the law on an administrative offense entailing the appointment of a more severe administrative penalty, if the victims in the case filed a complaint about the leniency of the applied administrative penalty; 5) on the cancellation of the decision and on sending the case for consideration according to jurisdiction, if during the consideration of the complaint it is established that the decision was issued by an unauthorized judge, body, official. 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. LECTURE No. 14. Legal services of a lawyer 1. The concept and types of representation in tax legal relations Due to their workload or for some other reason, an accountant cannot always personally perform a number of actions related to the payment of taxes: deliver the necessary documents to the tax office, be present in court in the event of a dispute with the tax office, etc. In such cases, the company can use the services of a representative, through him to exercise their rights as a taxpayer. A representative with appropriate powers may perform the duties of a taxpayer. You can use the services of a representative even if the taxpayer himself is personally involved in tax relations. For example, an organization has entered into an agreement with a law firm to represent interests in the tax authorities. But this does not mean at all that the organization itself can no longer participate in resolving issues related to the payment of taxes, along with a representative of a law firm. Note that even before the adoption of the Tax Code of the Russian Federation (TC RF), enterprises could act in tax relations through a representative, guided by Art. 182-189 of the Civil Code of the Russian Federation. 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. In particular, art. 26 of the Tax Code of the Russian Federation grants the taxpayer the right to participate in relations regulated by the legislation on taxes and fees through an authorized representative, unless otherwise provided by the Tax Code of the Russian Federation. An authorized representative of a taxpaying organization shall exercise his powers on the basis of a power of attorney issued in the manner prescribed by civil law. An authorized representative of a taxpayer - an individual shall exercise his powers on the basis of a notarized power of attorney or a power of attorney equivalent to a notarized one in accordance with civil law. 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 at the conclusion of the 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 the accounting methods that allow legally reduce the taxable base, or in other ways; 4) protection and representation of 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). Thus, it is necessary to pay attention that 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. Power of attorney is a written authorization issued by one person to another person for representation before third parties (Article 185 of the Civil Code of the Russian Federation). Thus, the scope of powers of a representative (lawyer) in tax legal relations is determined in a power of attorney. 2. Legal services for drafting contracts and transaction support, claim work This type of legal assistance in the field of entrepreneurship can rightfully be considered one of the main and most important activities of a lawyer, since a huge number of civil law norms are associated with the procedure for concluding and executing transactions. For their implementation, 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. This issue must be resolved before the contract is drawn up, and if the activity requires a license, but it is not, then it is necessary to obtain it. The timing of obtaining a license may make it difficult to fulfill contractual obligations or even make them impossible. License required, as a rule, for banking, insurance, construction work, alcohol production, etc. 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. It is advisable to check the existence of an order for the appointment or election of an official of the counterparty to confirm his authority and their validity. These actions can best be performed by a lawyer as a specialist in this field. 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. With regard to the consideration of cases in which the parties to the process are legal entities or individual entrepreneurs without the formation of a legal entity, registered in the prescribed manner, disputes may be considered in an arbitration court, in an arbitration court or an international court. And the place of this trial plays a very important role. 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. Ignoring these provisions can lead the client to serious financial losses, which can sometimes be avoided by slightly changing the terms of the contracts, changing the nature of the transaction, or even refusing it if the risk is high. These financial losses may be caused by the application of financial sanctions by tax authorities, currency control authorities and other regulatory authorities. 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. LECTURE No. 15. Representation of a lawyer in courts 1. 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. The Model Law was conceived and executed as intended to serve as a basis for the harmonization of national law on international commercial arbitration. During its development, the experience of legislative regulation of arbitration in various countries of the world belonging to different legal systems was studied. The form of the Model Law was intended to ensure the harmonization of national laws on the arbitration court and at the same time serve as a basis for the harmonization and unification of laws not only on international commercial arbitration, but also on the so-called domestic arbitration court. Legislative practice in a growing number of States confirms the vitality of an assessment of the Model Law that: 1) is used as the basis for unified laws on the arbitration court (Germany - 1998, Finland - 1992, Sweden - 1999, etc.); 2) is almost completely accepted as the basis of national laws on international commercial arbitration (Canada, Russian Federation - 1993; Ukraine - 1994, etc.); 3) adapts to the established national traditions of legal regulation while adjusting them (for example, England - 1996, Switzerland - 1987). 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." In modern Russian legislation, the main federal laws in which the state authorized the arbitration of civil law disputes are: the Civil Code of the Russian Federation (Article 11); Code of Civil Procedure of the Russian Federation (part 3 of article 3); APC of the Russian Federation (part 6 of article 4). In order to avoid mistakes in determining the rules of arbitration, a lawyer needs to understand the meaning of the main terms and legal techniques used in each of the two Russian laws on arbitration. The UNCITRAL Model Law "On International Commercial Arbitration" and the following Law of the Russian Federation of July 7, 1993 No. 5338-1 "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 prototype of the concept "arbitration court", as a single for two types of arbitration, served as a seemingly similar term "arbitration" in Art. 2 of the Law of the Russian Federation "On International Commercial Arbitration". However, in reality, these terms in Art. 2 of each of the two laws have a different meaning. 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. The different meaning of the key term "arbitration" - "arbitration court" predetermined the peculiarities of the structure of each of the two Russian laws on the arbitration court, as well as the use of various legal techniques used in formulating most of its dispositive provisions in relation to each type of arbitration court. 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. 2. 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. The Regulations specify the procedure for considering complaints; it is referred to in decisions and rulings of the European Court. In addition, it regulates the position of the lawyer when considering such cases. 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. Rule 36 of this document states that persons, non-governmental organizations or groups of individuals may initially file complaints under Art. 34 of the Convention alone or through a representative. After notifying the High Contracting Party - the respondent of the receipt of a complaint under sub. Rule 2 § 54 b of the Rules, the applicant must be duly represented, unless the President of the Chamber decides otherwise. This procedure is mandatory at any hearing scheduled by the Chamber, unless the President of the Chamber, in an exceptional case, grants the applicant the right to represent him personally, who, if necessary, may be assisted by a lawyer or other approved representative. 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. If a person does not have sufficient command of one of the official languages of the Court, the President of the Chamber may, in accordance with Rule 3 § 34 of the Rules, grant permission to use one of the official languages of the Contracting States. Thus, a lawyer who is fluent in at least one of the official languages of the Court can be a representative in the European Court in order to provide qualified assistance to the client. In addition, the fact that the process of resolving disputes in the European Court differs from the system that exists in Russia makes it difficult. 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 has the right, if a representative of a party makes offensive, frivolous, unfair, misleading or voluminous arguments, to remove such representative from participation in the proceedings in the case, to refuse to admit the arguments in whole or in part to the case, or to take any other measures that he considers 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. Such provision, subject to the provisions of Rule 96, shall remain in force in relation to the proceedings in the Grand Chamber from the moment of receipt from the High Contracting Party respondent of written observations on the admissibility of the application in accordance with sub. "b" paragraph 2 of Rule 54 or from the date of expiration of their filing. 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. LECTURE No. 16. The emergence of a notary 1. 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 XVI 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, Part 1). The regulation established a system of notarial bodies and determined their competence. All former institutions of serf affairs, the positions of serf overseers, secretaries and scribes were abolished. Since that time, a notary has become a person specially endowed with the power to perform and testify notarial acts in Russia. The notary at that time was a relatively independent institution from the state. This was expressed in the fact that notaries were recognized as free professionals, carrying out their activities on a commercial basis. At the same time, they were in the public service, they were assigned the 8th grade by position. Supervision of the activities of notaries were to be carried out by the courts. 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 was 10 rubles, in the provincial city - 000 rubles, in district cities where there were district courts - 6000 rubles, in other cities - 4000 rubles. This pledge was aimed at ensuring the notary's property liability 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. Along with notaries, there was the position of senior notary, who was supposed to have a higher legal education. Senior notaries were exempted from paying a deposit, and in terms of money and service rights they were equated with members of district courts. They were entrusted with the execution the following features: 1) management of notarial archives at the district courts, where books were kept - serf, prohibitive and permissive; registers and documents of notaries of the district, delivered after a year from the date of the end of the book; 2) issuance of records from act books and copies from notarial acts; 3) approval of notarial deeds, which the parties wished to turn into serf deeds. By the end of the XIX century. in Russia there are many problems associated with the activities of notaries. Firstly, very low earnings, especially in small towns, and secondly, the obligatory presence of two witnesses when performing notarial acts, to whom notaries were forced to pay the so-called remuneration. In addition, there were groups of bodies and officials who had the right to perform notarial acts, but did not always have the necessary experience and knowledge: 1) public (city) notaries; 2) stock brokers and notaries, ship brokers; 3) highly specialized brokers: shipping affairs, the state commercial bank, private, servants and workers, shop, craft administrations; 4) magistrates, town halls, dumas, customs officials, bailiffs, trade verbal courts. 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. 2. 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. However, the needs of society required the implementation of notarial acts, and in 1919 it was proposed to establish notarial tables, where only certain notarial acts could be performed: certification of various circumstances, verification of the accuracy of copies from documents, authenticity of signatures. 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; 4) certification of powers of attorney and copies of documents and extracts from trade books, as well as authenticity of signatures; 5) certification at the request of officials and institutions, as well as individuals of indisputable circumstances; 6) issuance of extracts and copies from notarial books and registers; 7) acceptance and storage of submitted documents. 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. There was no institution of personal property liability of a notary for harm caused to citizens and organizations in the performance of his official duties. The tasks of notarial bodies included checking the compliance of the notarial actions required of them and the documents submitted to them with applicable laws, providing active assistance to workers in protecting their rights and legitimate interests so that legal ignorance, illiteracy, and similar circumstances could not be used to their detriment. The specified Decree attributed the following actions to the competence of notarial bodies: 1) notarization of transactions; 2) making protests provided for by law; 3) certification of the accuracy of copies of documents and extracts from books and documents; 4) authentication of signatures; 5) certification of circumstances and facts that may have legal significance, in which the notary can personally verify and for the certification of which the law does not establish another procedure; 6) registration of arrests imposed on buildings, as well as changing and removing them; 7) storage of documents; 8) other actions provided for by the legislation of the Union republics. 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. Gradually, a new branch of law began to take shape in the legal system of Russia - notarial law, which unites the system of legal norms governing social relations regarding the performance of notarial acts. LECTURE No. 17. Notaries: concept and activities 1. 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 in the course of notarial proceedings there is a dispute about the right, then the notarial proceedings must be suspended until the dispute is resolved; 4) the essence of the activity of a notary lies in the legal consolidation of civil rights and obligations in order to prevent their possible violation in the future. Currently, there are two main notarial systems in the world - the Latin and the Anglo-Saxon type. The Latin type is characterized by the fact 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 judicial 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. Its main benefits compared to a public notary became: 1) broad powers; 2) independence from public officials; 3) personal property liability of a privately practicing notary, and, consequently, an interest in quality work; 4) self-financing, existence without costs for the budget. According to Art. According to the Constitution of the Russian Federation, the constitutions of the republics within Russia, these Fundamentals, the protection of the rights and legitimate interests of citizens and legal entities by performing by notaries the notarial actions provided for by legislative acts on behalf of the Russian Federation. At the same time, notarial acts in the Russian Federation are performed in accordance with the Fundamentals - by notaries working in a state notary's office or engaged in private practice. Notarial acts in Russia can be performed not only by notaries. In the absence of a notary in the locality, notarial acts are performed by officials of executive authorities authorized to perform these acts. Notarial actions on behalf of the Russian Federation on the territory of other states are performed by officials of the consular institutions of the Russian Federation authorized to perform these actions. 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; 6) certification, since the notary is empowered to give the actions of participants in civil circulation a special legal nature on behalf of the state. 2. 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. In carrying out his activities, he cannot pursue personal interests and benefits, as well as the interests of close relatives; 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 the republics within the Russian Federation, as well as legal acts of state authorities of the autonomous region, autonomous districts, territories, regions, cities of Moscow and St. Petersburg, 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. Information (documents) on performed notarial acts may be issued only to persons on whose behalf or on behalf of whom these acts were performed. If the persons performing notarial acts or in respect of whom such acts are performed issue a power of attorney, then such documents may be issued by power of attorney to the persons specified in the power of attorney. 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." Notarial activity is not entrepreneurship due to the fact that entrepreneurship involves making a profit, an entrepreneur in the field of his activity sets prices himself, focusing on supply and demand. Prices for notary services are established by law, and violation of such a law is the basis for depriving a notary of a license. Being engaged in scientific activity, the notary improves his knowledge in the field of law, which contributes to his further professional growth. 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. The legislator directly indicates that a notary has the right to travel to another notarial district to certify a will in the event of a serious illness of the testator and in the absence of a notary in that notarial district at that time. LECTURE No. 18. Legal foundations of a notary. Financial support for notarial activities 1. 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. It enshrines the recognition and protection equally of private, state, municipal and other forms of property (Part 2 of Article 8), the inadmissibility of the exercise of rights and freedoms in violation of the rights and freedoms of other persons (Part 3 of Article 17), the equality of all before law and court (part 1 of article 19); inviolability of private life, personal and family secrets (Part 1, Article 23); the right of everyone to own property, own, use and dispose of it, both individually and jointly with other persons; inadmissibility of deprivation of property except by a court decision; rights of inheritance (Article 35); freedom of ownership and use of land and other natural resources, if this does not damage the environment or violate the rights and legitimate interests of other persons (Article 36), and other rights. 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 the 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 for the activities of a notary, including including the performance of individual notarial acts. Article 333.24 of the Tax Code of the Russian Federation establishes the amount of the state duty for the performance of notarial acts by notaries of state notary offices and (or) officials of executive authorities, local governments authorized in accordance with the legislative acts of the Russian Federation and (or) legislative acts of the constituent entities of the Russian Federation to perform 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 Since, according to Art. 72 of the Constitution of the Russian Federation, the notary is assigned to the sphere of joint jurisdiction, then legal regulation of the subjects of the Russian Federation can be carried out on notary issues; 4) normative acts of the President of the Russian Federation For example, the Regulations on the consular office of the Russian Federation of November 5, 1998, 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 the seals of notaries"; 5) Decrees of the Government of the Russian Federation These include: Decree of the Government of the Russian Federation of February 16, 2005 No. 82 "On approval of the Regulations on the procedure for transferring information to the Federal Financial Monitoring Service by lawyers, notaries and persons engaged in entrepreneurial activities in the provision of legal or accounting services", establishing that notaries, if they have reason to believe that transactions or financial transactions made by their clients, are carried out or may be carried out for the purpose of legalization (laundering) of proceeds from crime or financing of terrorism, notify the Federal Financial Monitoring Service of this; 6) 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, Methodological recommendations on the performance of certain types of notarial acts by notaries of the Russian Federation dated March 15, 2000 No. 91, and also Order of the Ministry of Justice of the Russian Federation dated April 10 2002 No. 99 "On Approval of Forms of Registers for Registration of Notarial Actions, Notarial Certificates and Authentication Inscriptions on Transactions and Certificated Documents"; 7) 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. In the context of Russia's entry into the world economic and legal space, the importance of international treaties on legal issues is very significant. For example, notaries apply the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk Convention of January 22, 1993) and other international agreements and treaties. 2. 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. Thus, the provided premises, repairs, payment of utilities, provision of office equipment and stationery, furniture, payment of wages to notaries and employees of the notary's office - all this is paid from the budget. This also includes compensation for damage caused to citizens as a result of illegal actions of a notary. 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 the certification of agreements on the mortgage of residential premises as security for the repayment of a credit (loan) granted for the purchase or construction of a residential building, apartment - 200 rubles; 3) for certification of constituent documents (copies of constituent documents) of organizations - 500 rubles; 4) for the certification of an agreement on the payment of alimony - 250 rubles; 5) for the certification of a marriage contract - 500 rubles; 6) for the certification of surety agreements - 0,5% of the amount for which the obligation is assumed, but not less than 200 rubles and not more than 20 rubles; 7) for certifying an agreement on changing or terminating a notarized contract - 200 rubles; 8) for the certification of wills, for the adoption of a closed will - 100 rubles; 9) for opening an envelope with a closed will and announcing a closed will - 300 rubles; 10) for making a writ of execution - 0,5% of the recovered amount, but not more than 20 rubles; 11) for taking measures to protect the inheritance - 600 rubles; 12) for protesting a bill of non-payment, non-acceptance and non-dating of acceptance and for certification of non-payment of a check - 1% of the unpaid amount, but not more than 20 rubles; 13) for the issuance of duplicate documents kept in the files of state notary offices, executive authorities - 100 rubles. 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. The following are exempted from paying the state fee in bodies performing notarial acts: 1) public authorities, local self-government bodies applying for notarial acts in cases provided for by law; 2) disabled people of groups I and II - by 50% for all types of notarial acts; 3) individuals - for the certification of wills of property in favor of the Russian Federation, constituent entities of the Russian Federation and (or) municipalities; 4) public organizations of the disabled - for all types of notarial acts; 5) individuals - for the issuance of certificates of the right to inheritance upon inheritance: a) a residential building, as well as a land plot on which a residential building, apartments, rooms or shares in the specified immovable property are located, if these persons lived together with the testator on the day of the testator's death and continue to live in this house (this apartment, room) after his death; b) the property of persons who died in connection with the performance of their state or public duties or with the fulfillment of the duty of a citizen of the Russian Federation to save human life, protect state property and law and order, as well as the property of persons subjected to political repression. The dead also include persons who died before the expiration of one year as a result of injury (concussion), diseases received in connection with the above circumstances; c) deposits in banks, funds in bank accounts of individuals, sums insured under personal and property insurance contracts, wages, copyrights and royalties provided for by the legislation of the Russian Federation on intellectual property, pensions. Heirs who have not reached the age of majority by the day of opening the inheritance, as well as persons suffering from mental disorders, over whom guardianship has been established, are exempted from paying the state fee upon receipt of a certificate of the right to inheritance in all cases, regardless of the type of inheritance property; 6) boarding schools - for the execution of executive orders on the collection of debts from parents for the payment of amounts for the maintenance of their children in such schools; 7) military units, organizations of the Armed Forces of the Russian Federation, other troops - for making executive inscriptions on the collection of debts in compensation for damage and other categories of citizens and organizations. LECTURE No. 19. Establishment and liquidation of the position of a notary. Trainees and assistants of notaries 1. The procedure for appointment to the position of a notary 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. But this number is not constant, since, on the one hand, the need for notarial services may increase due to changes in economic and other conditions, or, on the contrary, decrease. And, as a result, it is necessary to increase the number of notaries in a particular area accordingly or reduce it. 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. Under the justice authorities of the republics within the Russian Federation, the autonomous region, autonomous districts, territories, regions, cities of Moscow and St. Petersburg, with the participation of representatives of the notarial chamber, a qualification commission is formed, which takes an exam from persons who have completed an internship and wish to engage in notarial activities. Based on the results of the examination, the commission makes a decision on the professional readiness of a person to carry out notarial activities, which is signed by all members of the commission present at the exam and remains stored in the relevant body of justice. Persons who have passed the qualifying exams receive a license for the right to engage in notarial activities. The license itself does not give the right to start notarial activities. The procedure for issuing a license established by the Ministry of Justice of the Russian Federation. Refusal to issue a license may be appealed against in court within one month from the date of receipt of the decision of the body of justice. The license is nominal in nature, has a serial number, is made on a special form. Competition procedure determined by the Regulations on the procedure for holding a competition for filling a vacant position of a notary by order of the Ministry of Justice of the Russian Federation dated February 17, 1997 No. 19-01-19-97. The regulation establishes that the purpose of the competition is to select the most trained persons for the positions of notaries, having the necessary professional knowledge, able to provide legal protection of property and other rights and legitimate interests of citizens and legal entities. 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. The notarial chamber shall be notified of the decision taken within three days from the date of issuance of the order. The start date of the competition is set not earlier than one month and not later than 2 months after the announcement of 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 qualification exam, and who have a license for the right to notarial activities. A license for the right to notarial activity (hereinafter referred to as the license) is issued by the authorized bodies of justice of the republics within the Russian Federation, the autonomous region, autonomous districts, territories, regions, cities of Moscow and St. Petersburg within a month after passing the qualification exam based on the decision of the qualification commission. Persons wishing to participate in the competition submit an application to the secretary of the competition commission, which is then registered in a special journal with the assignment of a serial registration number. Along with the application, notarized copies must be provided: a diploma of higher legal education, a work book, a license for the right to notarial activities, as well as a sheet of personnel records of the established form with a photographic card of the candidate. Other documents or their notarized copies, which characterize the professional legal training of the candidate, may also be provided. After that, on the basis of the submitted documents, the competition commission decides on the admission of candidates to participate in the competition. 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. If necessary, the commission has the right to conduct individual interviews with contestants on issues related to notarial activities. Candidates are evaluated on a ten-point system. 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. 2. Termination of powers of a notary The procedure for dismissal of a notary public differs in relation to public notaries and notaries engaged in private practice. So, 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. Moreover, the composition of the crime is not specified; 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 (for example, a notary acting under a power of attorney, the validity of which has expired), as well as in case of impossibility to perform professional duties for health reasons (if there is a medical certificate) and in other cases provided by the legislative acts of the Russian Federation. The body of justice, together with the notarial chamber, decides on the transfer of documents kept by the notary, whose powers are terminated, to another notary. 3. Intern and assistant of 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. Interns for an internship may be appointed to the vacant position of a public notary, assistant notary, consultant. 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 specialty 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 notary 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." The number of notary trainee positions is determined annually by a joint decision of the territorial body of the Federal Registration Service and the Notary Chamber. 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. For the implementation of these functions, a notary may be established by the body of justice an allowance to the official salary. A notary working in a state notary's office or in private practice may simultaneously supervise the work of no more than two trainees. 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. LECTURE No. 20. Public and private notaries 1. 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, the justice authorities of the autonomous region, autonomous districts, territories, regions, cities of Moscow and St. Petersburg in the republics of the Russian Federation, the autonomous region, autonomous districts, territories, regions, cities of Moscow and St. Petersburg, respectively. 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. 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; 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 (for example, certification of transactions, except for agreements on the alienation of real estate located on the territory of the Russian Federation). The register of all state notary offices and notary offices engaged in private practice is maintained by the Ministry of Justice of the Russian Federation on the basis of the Order dated December 2, 2003 "On Approval of the Procedure for Maintaining the Register of State Notary Offices and Notary Offices engaged in private practice". In accordance with the said Order, the register is formed and maintained by the Office for Control in the Sphere of Advocacy and Notaries and Legal Assistance of the Federal Registration Service to ensure registration of state notary offices and notary offices engaged in private practice, as well as to provide interested persons with the information contained in the register. The information contained in the register is open and must be provided within ten days from the date of receipt of the relevant request. 2. 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 have an office, which is a room located in a non-residential fund. The office should have: a reception room, a notary's secretary's room, a notary's room; 2) 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; 3) have the right to have property and personal non-property rights and obligations; 4) have the right to hire and fire employees. In this case, he must pay them wages, make payments for these workers with a pension fund, a fund for compulsory medical insurance and social insurance. Thus, the notary uses the services of the system of state social security, medical and social insurance in the manner prescribed by the legislation of the Russian Federation; 5) 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; 6) act in court (for example, if close relatives of the testator try to challenge the will certified by a notary), arbitration court on their 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. Legislative acts of the Russian Federation may provide for other notarial acts. On the basis of the Letter of the Pension Fund of Russia (hereinafter - FR) dated October 1, 1997 No. LCH -16-28 / 7063 "On notaries engaged in private practice", registration of notaries is carried out by the PFR bodies at the place of permanent residence of notaries or at their location notary offices upon presentation of certified copies of the order of the body of justice on his appointment to the position of a notary, a license for the right to notary activities, as well as an application for registration, a passport or other document proving the identity of this person. 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. The sum insured cannot be less than 100 times the minimum monthly wage established by law. A notary is not entitled to perform his duties without concluding an insurance contract. LECTURE No. 21. Chambers of Notaries 1. 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 Federationcreated in each republic, autonomous region, autonomous district, region, region, cities of Moscow and St. Petersburg. The chambers act in accordance with the Constitution of the Russian Federation, the legislation of the Russian Federation, the charter of the chamber, registered by the justice authorities of the Russian Federation. The notarial chamber may carry out entrepreneurial activities insofar as it is necessary to fulfill its statutory tasks. The notarial chamber is liable for its obligations with its property, which can be levied under the legislation of the Russian Federation, but is not liable for the obligations of its members, just as members of the notarial chamber are not liable for the obligations of the chamber. 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; reimbursement of expenses for examinations appointed by the court in cases related to the activities of notaries; organization of notarial activity insurance. The legislation of the republics within the Russian Federation may provide for other powers of the notarial chamber. The charter of a particular notarial chamber may also provide for other powers, for example, to publish methodological manuals, analyze practice, etc. 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 charter is registered in the manner established for the registration of charters of public associations. The supreme body of the notarial chamber is a meeting of members of the notarial chamber, which is competent to make decisions at least once a year if at least half of the members of the chamber participate in its work. When voting, members of the notarial chamber, who are notaries engaged in private practice, have the right of a decisive vote, and assistants and trainees of a notary have the right of an advisory vote. 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 meeting of members of the notary chamber, the board of the notary chamber and the president of the notary chamber are regulated by the charter 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; determination, together with the justice authorities, of the total number of notaries in the notarial district; determining the size of membership fees; resolution of other issues related to the activities of the chamber. Membership fee can be set as a percentage of the income received by a notary, or be a fixed amount or calculated in terms of minimum wages. The powers of the board include: determination of 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; organization of events to improve the professional level and qualifications of notaries; 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. The president of the chamber is elected from among the notaries by the meeting of the chamber for a term of 2 years. He directs the work of the board, represents the chamber in international organizations of notaries, public authorities of the Russian Federation, organizes the verification of complaints and other materials about the actions of notaries, exercises control over the execution of decisions of the meetings of the chamber, board resolutions, constantly informs the meeting about the progress of their implementation and exercises other powers. 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. Many notary chambers issue information bulletins, which publish the correspondence of the notary chamber with state institutions, local governments, as well as other information necessary for the daily work of a notary. 2. Federal Notary Chamber Federal Chamber of Notaries is a non-profit organization representing a professional association of notarial chambers of the republics within the Russian Federation, the autonomous region, autonomous districts, territories, regions, cities of Moscow and St. Petersburg, based on their mandatory membership. The Constituent Assembly adopts its charter, elects the governing and controlling bodies of the chamber - 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 Federal Notary Chamber unites all regional notary chambers on the principle of voluntariness. The chamber's sources of funds are membership fees, income from publishing and economic activities, dividends on shares, interest deductions on deposits and securities, and other receipts that do not contradict the law. 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 of 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. It is authorized to hear the reports of the board, the president, the audit commission, consider complaints against resolutions and decisions of the board, decide on the termination of activities and liquidation of the Federal Notary Chamber. The board of the chamber performs such powers as: convenes meetings of representatives of notary chambers, organizes the implementation of decisions of the meeting and the requirements of the charter, together with the Ministry of Justice of the Russian Federation, determines the procedure for completing an internship, approves regulations on qualification and appeal commissions, determines the procedure for holding a competition for filling the position of a notary, etc. . 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, at the meeting of representatives of the notary chambers, an audit commission is elected by a simple majority of votes. Candidates for the commission are represented by regional notary chambers according to an equal quota established by the meeting. The Audit Commission controls the fulfillment of the statutory requirements, the operational activities of the executive bodies of the Federal Notary Chamber and reports on the results of its work to the meeting of representatives of the notary chambers. Since 1997, the Federal Notarial Chamber has been publishing the scientific journal Notarial Bulletin. The Federal Notarial Chamber has a scientific and practical council, 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. 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. 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. LECTURE No. 24. Notary office work 1. 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 drawn up during the performance of notarial acts are recorded. It must be properly executed (the sheets are numbered, stitched, and on the reverse side of the last sheet, authorized employees of justice or the notary chamber make an entry about the number of stitched and numbered sheets, which is aimed at the impossibility of replacing sheets in the register). Entries in the register can be made by notaries themselves, their assistants, the secretary and other employees of the notary's office; 3) filling in notarial certificates and certification inscriptions, the forms of which are established, by the Order of the Ministry of Justice of the Russian Federation "On approval of the Register Forms for registration of notarial acts, notarial certificates and certification inscriptions on transactions and certified documents". But, in addition to certificates and certification inscriptions, there are other forms of notarial documents. Thus, a notary protests a bill of non-payment, non-acceptance and non-dating of the acceptance in accordance with the legislative acts of the Russian Federation on a bill of exchange and a promissory note. When making a sea protest, a "act of sea protest" is made. Control is exercised over the conduct of notarial office work. Moreover, the execution of control over the implementation of the rules of notarial office work by notaries working in state notary offices is carried out by the justice authorities of the republics within the Russian Federation, the autonomous region, autonomous districts, territories, regions, cities of Moscow and St. practice, - justice bodies together with notary chambers. Such an organization of control over notarial office work is aimed at ensuring the uniformity of its conduct, as well as the register of registration of notarial acts, notarial certificates and certification inscriptions on transactions and documents being certified. 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. If the person who applied for a notarial act does not speak the language in which notarial office work is conducted, then the texts of the executed documents must be translated to him by a notary or translator. A notary, not being a legal entity, has its own seal with the image of the State Emblem of Russia, which symbolizes the activity of a notary as an official 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 the documents drawn up and (or) issued by them. The office work of a notary usually includes: maintaining documentation related to the performance of notarial acts, organizational and administrative documentation; work with complaints, statements and other letters of citizens and organizations; drawing up nomenclatures, as well as maintaining the archive of a notary office. Responsibility for the organization and proper organization of office work and the state of the archive rests with the notary. 2. Procedure for performing notarial acts The specifics of the work of notaries, unlike representatives of other legal professions, is to perform notarial acts. The concept of notarial action is ambiguous. Allocate dynamic and static concepts of notarial action. The dynamic content of the procedure of notarial activity is expressed in the consistent fulfillment of a whole system of legal facts, the static concept of notarial action is interpreted as the 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. The competence of these persons is also regulated by law; 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. Depending on the subject authorized to perform notarial acts, the procedure for performing notarial acts by notaries is established by the Fundamentals of the legislation of the Russian Federation on notaries and other legislative acts of the Russian Federation and the republics within the Russian Federation, the procedure for performing notarial acts by officials of consular institutions is established by legislative acts of the Russian Federation, and the procedure for performing notarial acts officials of executive authorities in settlements where there are no notaries, is established by the Instruction on the procedure for performing notarial acts, approved by the Ministry of Justice of the Russian Federation. 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. It is worth considering that when a notary travels to perform notarial acts, interested persons reimburse the actual expenses incurred in connection with the trip. Notarized documents must be signed in the presence of a notary. Otherwise, the person concerned must personally at the notary confirm that the document is signed by him and sign in the register. 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. After the receipt of the first application for the acceptance of the inheritance, an inheritance file is opened, after which all subsequent applications for the acceptance of the inheritance by other heirs, for the refusal to accept the inheritance, for taking measures to protect the inheritance property, are filed into this file. After the issuance of a certificate of the right to inheritance, the pages of the inheritance file are numbered, filed, and it is archived. In case of loss of documents, copies of which are stored in the files of the notary's office, upon written applications of citizens, legal representatives of legal entities, on whose behalf or on behalf of which notarial acts were performed, duplicates of the lost documents are issued. A duplicate of the will may be issued to the testator, and after his death to the heirs indicated in the will upon presentation of the death certificate of the testator, and a duplicate of the executive inscription by a notary may be issued only after certification that the executive inscription was not presented for execution. The duplicate of the document must contain the entire text of the certified or issued document. 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. LECTURE No. 25. Certification of transactions 1. The concept of transaction certification 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. Transactions are actions of citizens and legal entities aimed at establishing, changing or terminating civil rights or obligations. Civil law distinguishes between unilateral and bilateral transactions. A unilateral transaction is considered to be a transaction, 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 a contract (bilateral transaction), it is necessary to express the agreed will of two parties or three or more parties (multilateral transaction). 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. Transactions with land and other real estate are subject to state registration in the unified state register by institutions of justice. Failure to comply with the notarial form and the requirement for state registration of transactions entails its invalidity. 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 (Art. 10 °CC RF) 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. When certifying a transaction, a notary or a person substituting him must verify the legal capacity or legal capacity of its participants. 2. 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. Ownership of real estate can be confirmed by a certificate of ownership, a certificate of ownership of land, a notarized contract for the sale of an apartment, house, land and other real estate, donation, exchange, a certificate of inheritance, a certificate of ownership of a share in the common property of the spouses or other documents. These documents must be marked with state registration, since the ownership of buildings, structures and other real estate subject to state registration arises from the moment of such registration. The pledge agreement must specify the subject of the pledge and its valuation, the amount and term of fulfillment of the obligation secured by the pledge, as well as an indication of which party has the pledged property. The text of the transaction should indicate the type of right (property right, right of lifetime inheritable possession, permanent perpetual use, economic management, operational management and easements). When an object is in the common shared ownership of several persons, the corresponding sizes of shares must be indicated in the document; 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 agreement with the legislation governing the right of citizens to build residential buildings (for example, the land must be fenced in accordance with the project). The agreement shall be accompanied by a decision on the provision and transfer of ownership of a land plot for individual housing construction, a certificate of ownership of the land plot, an act on the allocation of land for the construction of an individual residential building with the named buildings, a plan for placing buildings on the land plot, a project for the construction of a residential building; 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. Certification of this transaction through representatives is not allowed. When certifying wills, testators are not required to provide evidence confirming their rights to the bequeathed property, since a will is an act of will of a person who establishes the legal procedure for the transfer of all or part of his property to certain persons. 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. According to paragraph 2 of Art. 1124 of the Civil Code of the Russian Federation in the case when, at the request of the testator or in cases specified by law, when drawing up, signing, certifying a will or when transferring a will to a notary, witnesses are present, they cannot be such witnesses and cannot sign a will instead of the testator: a notary or other person certifying the will; a person in whose favor a will is drawn up or a testamentary refusal is made, the spouse of such a person, his children and parents; citizens who do not have legal capacity in full; illiterate; citizens with such physical disabilities that clearly do not allow them to fully realize the essence of what is happening; persons who do not have sufficient command of the language in which the will is drawn up, except for the case when a closed will is drawn up. In the event of receiving a notice of the revocation of a will, as well as receiving a new will that cancels or changes a previously drawn up will, the notary makes a note about this on the copy of the will kept by the notary and in the register of registration of notarial actions. This notice must also be notarized; 4) powers of attorney. A power of attorney is a written authorization issued by one person to another person for representation before third parties. According to the content of powers, they distinguish: general (general) powers of attorney, providing for the commission of various transactions, special ones - imply the authority to perform a number of homogeneous legal actions, one-time - provide the opportunity to make only one transaction. A notary has the right to certify powers of attorney on behalf of one or more persons, in the name of one or more persons. 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. A power of attorney issued by way of substitution must not contain more rights than those granted under the main power of attorney, and cannot exceed the validity period of the power of attorney on the basis of which it was issued. 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. At the request of the person who applied for a notarial act, the notary shall accept for safekeeping one copy of the said documents. LECTURE No. 26. Registration of inheritance rights 1. 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. According to Art. 1116 of the Civil Code of the Russian Federation, citizens who are alive on the day of opening the inheritance, as well as those conceived during the life of the testator and born alive after the opening of the inheritance can be called upon to inherit. The notary may also call the heirs by placing a public notice or a message in the media. 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 inheritance is issued to heirs at any time after 6 months from the date of opening of the inheritance. 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. If the heir has submitted all the documents necessary for issuing a certificate of the right to inheritance and paid the state fee, at his request the certificate can be sent to him by mail, in this case his personal appearance is not mandatory. Such a request is expressed in a separate application of the heir or in the inscription on his application for acceptance of the inheritance. 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. Each of the heirs who accepted the inheritance, having submitted all the documents necessary for issuing a certificate of the right to inheritance, has the right to demand a certificate for the share due to him, without waiting for other heirs to wish to receive a certificate. According to the provisions of the Order of the Ministry of Justice of the Russian Federation dated April 10, 2002 No. 99. "On approval of the Register Forms for the registration of notarial acts, notarial certificates and authentication inscriptions on transactions and evidenced documents", a certificate of inheritance must contain the following information: 1) surname, initials of the notary; 2) last name, first name, patronymic and date of death of the testator; 3) grounds for inheritance; 4) last name, first name, patronymic, date of birth, place of residence of the heirs, as well as details of documents proving their identity; 5) shares of heirs in the inheritance; 6) the name of the hereditary property, its characteristics, location and valuation; 7) the number of the inheritance file; 8) the number under which the certificate is registered in the register of registration of notarial acts; 9) the amount of collected state duty (notarial fee); 10) seal and signature of a notary. 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. 1163 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. Prior to acceptance of the inheritance, creditors' claims may be brought against the executor of the will or against the estate. Each of the heirs who accepted the inheritance is liable for the debts of the testator within the value of the inherited property that has passed to him. 2. 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 (heirs, executor of the will), legal entities or on his own initiative has the right to take measures to the protection of 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. The notary has the right to describe the property, provided that the persons living together with the testator voluntarily submit the property to the inventory. If they object to the inventory, the notary draws up an act of refusal to submit the property to the inventory and notifies the heirs about this, explaining to them the right to apply to the court with a claim for the recovery of their share of the inheritance property due to them. During the production of an inventory of property, the executor of the will, heirs and, in appropriate cases, representatives of the body of guardianship and guardianship may be present. In order to identify the composition of the inheritance and its protection, the notary has the right to request banks and other credit organizations about the funds, currency and other valuables that belonged to the testator on their deposits, accounts or in storage. 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 notary at the location of the property, who has received an instruction from the notary at the place of opening of the inheritance to take measures to protect the inheritance property, registers this instruction in the register of applications for taking measures to protect the inheritance property. But the inheritance case is not started by this notary. Decree of the Government of the Russian Federation of May 27, 2002 No. 350 "On approval of the maximum amount of remuneration under an agreement for the storage of hereditary property and an agreement for the trust management of hereditary property" establishes that the maximum amount of remuneration under an agreement for the storage of hereditary property and an agreement for the trust management of hereditary property cannot exceed 3 % of the assessed value of the estate. 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. If the inheritance contains property that requires management, as well as in the event of a claim by the creditors of the testator before the inheritance is accepted by the heirs, the notary shall appoint a custodian of the inheritance property, who will receive remuneration from the heirs for the storage of the inheritance property. LECTURE No. 27. Issuance of a certificate of ownership of a share in the common property of the spouses. Making Protests of Promissory Notes 1. 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 that the common property of the spouses (property acquired by the spouses during marriage) includes the income of each spouse from labor activity, entrepreneurial activity and the results of intellectual activity, pensions, benefits received by them, as well as other cash payments that do not have a special target destination. The common property of the spouses also includes movable and immovable things acquired at the expense of the joint income of the spouses, securities, shares, deposits, shares in the capital, contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was acquired or in the name of which or by which of the spouses the funds were deposited. It should be noted that a certificate of ownership of property owned by each of the spouses cannot be issued. The Family Code of the Russian Federation refers to such property: 1) property that belonged to each of the spouses before marriage; 2) property received by one of the spouses, even if during the marriage, but by way of inheritance; 3) property received by one of the spouses as a gift both from the second spouse and from third parties; 4) property received under other gratuitous transactions; 5) items for personal use (clothes, shoes, etc.), regardless of the time and grounds for acquisition, with the exception of jewelry and other luxury items. 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. The notice specifies the composition of the common property of the spouses, for the share of which the surviving spouse will have to issue a certificate of ownership, and also explains the right to apply to the court if the heir disputes the property claims of the surviving spouse. Also, a certificate of ownership of a share in the common property of the spouses may be issued to the surviving spouse for half of the common property acquired during the marriage. 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. In this situation, in order to issue a certificate of ownership, the notary must check the following circumstances: 1) the fact and date of death - according to the death certificate; 2) the existence of marital relations between the applicant and the deceased - according to the marriage certificate; 3) ownership of property, the time of its acquisition, the fact of its acquisition in marriage - according to title documents; 4) the absence of a marriage contract; 5) if there are minor heirs, the consent of the guardianship and guardianship authorities. Forms of certificates of ownership are approved by the Ministry of Justice of the Russian Federation. 2. 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. The said Regulation establishes the following types of protest: 1) protest of a bill of exchange in non-acceptance or non-dating of acceptance; 2) a protest in non-payment on a bill of exchange, both for a simple one and for a transferable one; 3) a protest against the non-issuance of a copy of the accepted bill of exchange by the person in whose possession it is. 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. To make a protest in non-acceptance and non-payment, certain time. So protest in non-acceptance must be completed within the time specified for presenting the bill for acceptance. To protest a bill of exchange for non-payment, which must be made for a certain day, the deadline is set on one of the two working days following the day on which the bill of exchange is due for payment, and for bills of exchange due at sight - during the time established for making a protest for non-acceptance. Bill of exchange must be presented for payment within 1 year from the date of its preparation. Drawer may shorten this period or stipulate a longer period. If an insurmountable obstacle (legislative order of a state or other case of force majeure) prevents the presentation of a bill of exchange or the making of a protest within the prescribed time limits, these time limits are extended. After the termination of the force majeure, the holder must present the bill of exchange for acceptance or payment without delay and, if necessary, make a protest. Before accepting a bill of exchange for protest, the notary is obliged to 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 (endorser) pays the bill, the notary, without making a protest, returns it to the person who paid the bill, with an inscription in the prescribed form on the bill itself about the receipt of payment and other amounts due. If the payer has made an acceptance note on the bill of exchange, the bill of exchange is returned to the drawer without protest. 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. LECTURE No. 28. Notarial actions to certify indisputable facts. Acceptance of documents and provision of evidence 1. 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 (parents, adoptive parents, guardians and trustees), 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 (for example, when a citizen, whose fact of being alive must be certified, due to illness, disability or other good reason, cannot appear to a notary). 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 (for example, according to the passport). Then, making sure that the certificate is really necessary for the citizen, the notary issues 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) is certified by a notary at the request of a citizen. Certification of the fact that a minor is in a certain place is made at the request of his legal representatives (parents, adoptive parents, guardians, trustees), as well as institutions and organizations in whose care the minor is. 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. After that, the notary establishes the identity of the citizen and issues a certificate confirming the specified fact. The certificate is also drawn up in two copies. In order to certify the identity of a citizen 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, the corresponding certificate is drawn up in two copies, and the photograph is placed in the upper left corner of the issued certificate, sealed by the notary's signature and seal. Certification of the time of presentation of documents is also carried out on the basis of an oral or written application of the person concerned. Most often, citizens are asked to certify the time of presentation of such documents as invention descriptions, literary works, movie scripts, and others. 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. If the document is set out on several pages, the notary, making a certification inscription, must flash them. When several documents are presented by the same person at the same time, an acknowledgment inscription is made on each of them. 2. Acceptance for storage of documents The notary has the right to accept for storage documents according to the inventory. One copy of the inventory remains with the notary, the other copy is issued to the person who has deposited the documents. When accepting documents for storage, the notary must determine the condition of each of them and reflect this in the inventory. A notary accepting documents for storage must have a special storage facility that ensures the safety of documents. An interested person needs to submit an application to the notary's office with a request to accept the documents for storage. At the request of a person, a notary may accept documents without an inventory, if they are properly packed (packaging is sealed by a notary, signed by him and the person who submitted the documents). In such cases, the notary is responsible for the safety of the packaging. On acceptance of documents for storage, the notary issues evidence, which is compiled in two copies. The second copy of the certificate is kept by the notary. The certificate states place of issue, day, month, year of issue (in words), surname and initials of the notary, address of the premises of his office, surname, name, patronymic of the citizen who deposited the documents, his place of residence, for how long the document was deposited. Upon presentation of a certificate and an inventory, the documents accepted for storage shall be returned to the person who deposited them or to a legally authorized person. The interested person submits an inventory, if it was drawn up, the notary checks the submitted inventory with a copy of the inventory kept by him. If there are no discrepancies, then the notary issues the documents kept by him, making a mark in the inventory and in the register. Documents shall be deposited for the period specified in the application. 3. Providing 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 of 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 for other expenses for the production of evidence securing. Experts and witnesses are given remuneration for distracting them from their classes at the rates established for the issuance of remuneration when summoning witnesses and experts to court. LECTURE No. 29. Control over the activities of notaries. Responsibility of notaries 1. 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. Applications for incorrect certification of wills and powers of attorney or for refusal to certify them by officials specified in federal laws must be filed with the court at the location, respectively, of the hospital, hospital, sanatorium, other inpatient medical institution; social service institutions, including homes for the elderly and disabled, institutions of social protection of the population; expeditions, military units, formations, institutions and military schools, places of deprivation of liberty. An application for incorrect certification of a will or refusal to certify it by the captain of a sea vessel, a mixed navigation vessel or an inland navigation vessel flying the State Flag of Russia shall be filed with the court at the place of the vessel's home port. 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 notaries working in state notary offices is carried out by the bodies of justice, and by notaries engaged in private practice - by notary chambers. Checking the organization of the work of a notary is carried out once every 4 years. The first check of the organization of the work of a notary, who for the first time began to carry out notarial activities in a republic within the Russian Federation, an autonomous region, an autonomous district, a territory, a region, the cities of Moscow and St. Petersburg, must be carried out 1 after vesting him with the powers of a notary. The purpose of the audit is: to identify violations and errors in work, to 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. The notarial chamber may demand from the notary (the person replacing the temporarily absent notary) the submission of information on the performed notarial actions, other documents relating to his financial and economic activities, and, if necessary, personal explanations in the notarial chamber, including on issues of non-compliance with the requirements professional ethics. Control over compliance with tax legislation is carried out by the tax authorities in the manner and within the time limits stipulated 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. 2. Responsibility of a notary According to Art. 17 of the Fundamentals of the legislation of the Russian Federation on notaries, a notary engaged in private practice who deliberately disclosed information about a notarial act performed (for example, issued a certificate or other document provided to a notary by law enforcement officers before a criminal case was initiated) or who committed a notarial act that contradicts the legislation of the Russian Federation (for example, a certificate transaction that does not comply with the requirements of the law), is obliged by a court decision to compensate for the damage caused as a result of this. In case of unintentional damage caused by a notary, it is compensated in a different manner (for example, through the social insurance system, but if the damage exceeds the sum insured, then the recovery is levied on the property of a notary engaged in private practice). Depending on what is the legal status of a notary - state or private practice - There are two basic procedures for holding accountable: 1) in the event that a notary engaged in private practice commits actions contrary to the legislation of the Russian Federation, his activities may be terminated by the court on the proposal of officials or bodies specified in Chapter 7 of the Fundamentals (part 2 of article 17 of the Fundamentals); 2) a notary working in a state notary's office, in case of committing actions contrary to the legislation of Russia, is liable in accordance with the procedure established by law (part 3 of article 17 of the Fundamentals). In this case, the provisions of the Labor Code of the Russian Federation on dismissal are subject to application. For certain disciplinary offenses, notaries may be subject to disciplinary liability. State notaries - on the basis of the norms of the Labor Code of the Russian Federation, private notaries - on the basis of the norms of the Professional Code of Notaries of the Russian Federation, it is also possible to apply liability measures provided for by the charter of the notary chamber or by the decision of the general meeting of the notary chamber. In case of failure to submit or untimely submission of the necessary information to the tax authority, the notary may be held liable in court in accordance with the legislation of the Russian Federation. Yes, Art. 129.1 of the Tax Code of the Russian Federation establishes that the unlawful failure to report (untimely communication) by a person of information that this person must report to the tax authority, in the absence of signs of a tax offense, entails a fine of 1000 rubles, and the same acts committed repeatedly during a calendar year, entail a penalty a fine of 5000 rubles. LECTURE No. 30. Professional ethics of a notary 1. 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. A notary, as a person endowed with special trust and responsibility to the state and society, is also obliged to: observe the norms of ethics and morality; refrain from any activity that could adversely affect the performance of the professional duties of a notary or raise doubts about his independence and objectivity; refrain from taking actions that may damage the professional activities of a notary or undermine the trust and prestige of the profession in society, including from receiving expensive gifts from persons who have applied for a notarial act, from visiting establishments with a dubious public reputation. The Professional Code of Notaries of the Russian Federation also gives the concept disciplinary offense of a notary, which is understood as a culpable improper performance or failure by a notary to fulfill his professional duties, as well as a violation of the ethical standards of behavior of a notary and other requirements established by law. These include, in particular: failure to attend, without good reason, general meetings of the notary chamber or events held by it to improve professional qualifications and other issues, failure to appear when invited to meetings of the governing bodies of the notary chamber; gross or repeated violation of the rules for conducting notarial office work, the established operating hours of a notary's office, failure to provide adequate conditions for receiving persons applying for a notarial act and for storing documentation; as well as violation of moral and ethical standards. In the event of a disciplinary offense, the code provides for the application of disciplinary measures, which include a reprimand, reprimand, and severe reprimand. If the offense was committed repeatedly, then a petition may be filed with the court against the notary to deprive the notary of the right to notarial activity. Also, for late or incomplete payment of membership fees and other obligatory payments to the notary chamber without good reason, as well as for failure to attend general meetings of the notary chamber without good reason, a monetary penalty in the amount of 5 to 100 times the minimum wage may be applied as compensation for damage to the notary chamber damage. Ethics control carried out by the notarial community itself. In case of non-compliance with the provisions of the code of professional ethics, notaries are obliged to give personal explanations in the notary chamber. 2. Relationships of a notary with 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 of the consequences of notarial acts performed so that legal ignorance cannot be used to their detriment; 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 working hours of a notary's office and the requirements for the premises and technical equipment of a notary's office, as well as the reception of visitors in a state of drug or alcohol intoxication, smoking during a reception without the consent of visitors and other manifestations of disrespectful attitude to the personality, dignity and rights of the visitor, including proposals of an offensive, immoral nature or other unworthy actions against persons with whom the notary has to interact in the course of his professional activities. 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. A notary who is a member of the elected and other bodies of the notarial chamber must properly fulfill his duties arising from the regulations, as well as the meaning of his activities and the election program. 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) to be considerate and tactful towards colleagues, informing them of issues that may help in their work, as well as potential professional difficulties and other problems requiring professional solidarity, as well as to provide assistance and transfer professional experience to young colleagues within the framework of corporate and professional solidarity and concern for the prestige of the profession and the entire notarial community; 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. The notary is prohibited from: describing their qualifications, belittle the professional dignity and authority of their colleagues in the profession, engage in unfair competition, interfere with the work of other notaries, engage in individual advertising, including in the media and the Internet, attract people who apply to the notary's office by lowering the established tariffs, as well as unfair promises regarding the mode and procedure of the office. The notary is obliged show respect for state authorities and local governments, maintain proper professional relations with authorized representatives of state authorities and local governments, while being punctual, correct, restrained and polite. Author: Nevskaya M.A.
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Comments on the article: Sophie Briefly and meaningfully about everything, corresponds to the real legal field of notarial activity [;)]
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