FREE NOTARY SYSTEM: REGULATING THE STATUS OF NOTARIES

Abstract

The article is devoted to the study of the peculiarities of the legal status of a notary, the legal basis of the Latin notary system in this regard and the peculiarities of its regulation in Ukrainian notarial legislation. It is substantiated that the essence of notarial activity, its tasks and functions testify to the public law nature of the notary as a body of indisputable civil jurisdiction. The author emphasises the combination of public law and private law aspects in the legal characteristics of notaries. The author also notes the lack of legislative regulation of the notary status and imperfection of the legislative definition of the notary concept. Thedefining characteristics of the notary status are outlined. Proceeding from the fact that the division of notaries into two types is not due to the nature of their duties, but to the peculiarities of organisation and financial support of notarial activities, it is concluded that the status of private and public notaries is the same in terms of their performance of public functions, and a private notary has a unique dual status as an official and a person of a free legal profession at the same time, despite the fact that he/she is not employed by the State apparatus and does not receive a salary from the budget. There is a fundamental difference between notarial and entrepreneurial activities, on the one hand, and between notarial and managerial activities, on the other. The author proves the necessity of legislative definition of the status of a private notary as an official or a person of public authority and identifies the possible consequences of a correct definition of the status of a notary as a subject of law enforcement in the undisputed area, which should serve as a basis for reforming the notary system, in particular, with regard to the procedure for vesting notarial powers, limiting the number of notary positions in notary districts, legislative regulation of the amount of payment for notarial acts (establishment of notarial tariffs), detailing the legal mechanism of state control over notarial activities, notary liability, etc. Proposals on trends of changes in the notary legislation of Ukraine are formulated.