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HISTORY AND PERSPECTIVES OF THE NOTARY INSTITUTION IN RUSSIA M.V. Popkova, Student
Supervisor: E.A. Popkova, Candidate of Philological Sciences, Associate Professor Kaluga Institute(branch) All Russia State University of Justice (Russia, Kaluga)
DOLW.24412/2500-1000-2024-4-3-131-137
Abstract. The purpose of the research is to consider the historical perspective and development of the institute of notary in tsarist Russia, in the Soviet period and in modern Russia. The author reveals the positive features and disadvantages of this institution in various historical periods of its existence. The study uses a comparative historical analysis, which made it possible to determine the prospects for the development of the institute of notaries in Russia.
Keywords: notary, history, development perspectives, Tsar Russia, Soviet period, Russian Federation.
To date, there has not been a unified model of the institute of notaries that would operate in any society at any stage of its development. The notary office, together with the state and society, is constantly evolving, as is the entire legal system of the state as a whole. The institute of notaries established in Russia arose as a form of public activity of independent notaries in connection with the adoption of the notarial part of the Temporary Provision approved by Emperor Alexander II in 1866. When creating this Provision, the notary legislation of Western Europe was taken as a basis: French - in 1813, Austrian - in 1845, Bavarian - in 1861. The adoption of the unified act on notaries in Russia marked a new era in the history of the development of the Russian notary, and this Provision presented notaries in a completely new form - in a way in which they had not existed before.
In accordance with Article 3 of this Regulation, "the positions of notaries were established in capitals, provincial and county towns, and, if necessary, in counties. However, the Provision was not introduced throughout the country" [1, p. 4], where notaries were absent, their functions were performed by magistrates, county courts, and the police. According to Article 17 of the Regulation, notaries were recognized as civil servants, they were assigned the 8th rank by position. However, they were not part of the justice system, and received neither salaries nor pensions from the State. St. 208 recognized notaries as free professionals who carry out their activities on a commercial basis.
The notary charged a certain fee for the services rendered, or this fee was determined by the tariff, in the absence of agreement with the cost of the notarial action. "In order to ensure the fulfillment of obligations that could arise as a result of improper actions, the notary was obliged to post a pledge when appointed to the position. The certification of notarial documents was carried out not on behalf of the state as a whole, but of the province where the notary served, since he had a seal with the image of the provincial coat of arms. The notary had to perform his duties only within the limits of his notary district. Notarial actions had to be performed in the premises of the notary office. In accordance with Articles 37, 114 of the Regulation, notaries were required to stay in their offices for at least 6 hours every day, and in exceptional cases, notarial actions could be performed "at home", but only at other times [2, p. 7]. In the Russian Empire, there were not enough people holding the position of notary, and the possibility of appointing a notary from the Government was envisaged. Such a notary was a civil servant, enjoyed all the rights and benefits on an equal basis with the secretary of the district court. He received remuneration appointed by the Ministry of Justice and did not provide bail to ensure his activities. All notaries were divided into two main categories: senior and junior. Senior notaries were in the public service, and their content, rights and benefits corresponded to the content, rights and benefits of the members of the district courts. They could have assistants equated in
status to the position of secretaries of the district courts. Senior notaries were responsible for ownership and other proprietary rights to immovable property, and all other notarial acts were performed by junior notaries (Articles 154-156) [3, p. 78].
Article 65 clearly defined the scope of actions of notaries. They had the right to perform any acts, except for acts of state, official and boundary, as well as to testify documents. Two witnesses had to be present when performing any notarial act, and three witnesses had to be present when drawing up bills of sale for real estate. Article 31 of the Regulation provided for strict rules for maintaining registers - without erasures and unspecified corrections. In accordance with the Regulations, two witnesses were required to be present at the commission of each notarial act, and three people were required when drawing up bills of sale for real estate. The regulation also contained rules on notarial secrecy. It had to be observed in all notarial actions [3, p. 87].
Despite the large amount of powers that notaries had in the Russian Empire, they were also still divided into stockbrokers and notaries, ship brokers; highly specialized brokers: shipping reprisals, state commercial bank, private, servants and working people, workshops, craft departments, Kronstadt Society of free sailors; magistrates, town halls, duma, customs officials, bailiffs, commercial verbal courts, who performed the functions of a notary or broker in their absence [4, p. 114].
Based on the above, it can be concluded that the Temporary Provision created in 1866 already clearly defined the legal status, competence of notaries, and fixed a strict procedure for carrying out notarial actions. However, the inequality between notaries in terms of legal status, the spread of notary legislation only in certain territories of the country greatly hindered the development of the institute of notaries.
Throughout the history of this country, judicial bodies, including the notary public, did not receive their further development after the collapse of the Russian Empire. The adopted Decree on the court No. 1 of November 24, 1917, abolished all judicial and related bodies that existed by that time in Russia, thereby playing a major role in the transition from pre-
revolutionary to post-revolutionary justice [5, p. 245].
The pre-revolutionary notary office, established in 1866 in the wake of judicial reform, differed from the Soviet established notary system in that it had a close connection with the judicial system and therefore was subject to renewal. The immediate act on the abolition of the pre-revolutionary notary was adopted on March 23, 1918: the resolution of the Council of People's Commissars of that date explicitly stated the abolition of the Provision on the notary part and the municipalization of all notary offices, which by that time had practically ceased their activities [6, p. 5].
The insignificance of civil turnover in the first post-revolutionary years, especially during the period of the policy of war communism, led to the loss of its former importance by the notary, which determined the lack of serious attention to the issues of its functioning and reform in the domestic legal thought of that period. The transitional stage in the new history of state and law had a negative impact on the development of the notary. All legal institutions, including the notary, were considered as a relic of bourgeois society, their existence was allowed only as temporary, designed for a transitional period. Even during the period of the new economic policy, which proclaimed a return to free trade and allowed private entrepreneurship, the importance of the institution of the notary was questioned. There was simply no question of the legality of civil transactions at that time: the only and most important thing was to ensure the interests of the state in every possible way [7, p. 26].
The issues of reforming the notary, which had lost its practical significance, were rarely discussed by lawyers, they did not generate serious discussions in the legal science of that period. The discussions that took place were, as a rule, purely practical in nature and did not relate to legal theory. Documents have been preserved testifying to the discussion by the Board of the People's Commissariat of Justice of the issue of the destruction of serfdom acts, the commission of which was among the important notarial functions in the pre-revolu-tionary period. This issue was discussed twice: on September 30, 1918 and on November 18, 1918. The destruction of serfdom acts was
associated with such tasks as the liquidation of former private ownership of real estate, the socialization of real estate and even the recycling of old stocks of paper, which eventually led to the idea of the liquidation of pre-revolutionary notary archives [6, p. 7].
The new economic policy, which has been carried out in the country since 1921 and was aimed at using market mechanisms to restore the national economy destroyed by the Civil War, contributed to the expansion of civil turnover, since, albeit temporarily, it changed the attitude towards private property [8, pp. 5-7]. The admission of private and foreign capital into economic relations raised the question of the need to ensure the legality of transactions and the entire civil turnover, ensuring diverse and at the same time legitimate property interests. Despite such trends, Chairman of the Council of People's Commissars of the RSFSR V. I. Lenin stressed the need to maintain state control over the private legal sphere, and called for increased state interference in private property relations. This position of Lenin became the basis for the subsequent attitude towards the institution of the notary, served as the basis for the formation of its essential characteristics and the formation of its role in public relations. The notary was called upon to observe the necessary line between two important trends, which V.I. Lenin at the fourth session of the Central Executive Committee: to observe the legitimate satisfaction of the economic interests of citizens and to prevent abuse of the principles of the new economic policy [9, pp. 245-251].
Thus, the judicial authorities faced an important task: without restoring the institution of the notary in its former, pre-revolutionary form, to create a reliable mechanism for registering transactions, without letting it out of the control of the judicial authorities. Such a mechanism was supposed to ensure the legality of civil turnover and at the same time prevent violations of the interests of the state.
The development of civil turnover during the period of the new economic policy led to an increase in the need for notarial actions, which initiated a discussion on the reform of the notary among government officials and the legal community.
At the time of the NEP, the issue of legality and the development of justice was actually reduced to preventing the abuse of the opportunities that this new economic policy opened up. In the context of new forms of economic activity, it was necessary to ensure compliance with the new legislation, which was codified in 1922-1923. In these two years, seven codes were adopted at once, which made it possible to formalize the system of Soviet legislation based on the principles of the Roman-German legal family [10, pp. 6-7], while adhering to Marxist-Leninist ideas about law. The People's Commissariat of Justice drew special attention of all subordinate bodies to the fact that it is necessary to prevent violations occurring in contractual relations between state bodies and private entrepreneurs, to reveal the facts of dishonesty of individual officials [11, pp. 15-16].
The formation of the Soviet notary in the early 1920s was hindered by the following factors:
- the absence of a legislative act on the notary;
- lack of notarial staff with relevant experience and knowledge.
In these conditions, the need to develop a single legislative act on the notary became more and more obvious. This issue was discussed by practitioners and figures of the Soviet justice system. Such discussions, which were official but not doctrinal in nature, testified to the emergence of Soviet notarial legal thought.
The issues of the notary were discussed by the delegates of the IV All-Russian Congress of Figures of Soviet Justice, which was held at the end of January 1922. One of the subjects of discussion was the previously published «Theses on the notary» [12, pp. 10-11].
An analysis of the text of these theses shows that their main provisions, which were of a fundamental nature for the creation of the Soviet notary, can be expressed as follows:
- the creation of a notary is due to a new economic policy and its consequence - the expansion of commodity turnover and the need to control it;
- the task of the notary is not only to give legal force and "strength" to acts, but also to ensure their lawful nature, that is, compliance with current legislation;
- the number of acts requiring notarization should be expanded;
- the notary is considered as a state institution, which implies the prevention of any private law relations within its framework;
- notarial bodies should be introduced into the general system of justice bodies;
- notarial actions can be appealed.
Thus, the formation and development of Soviet notarial legal thought from the very beginning followed the path of abandoning the Latin-type notary, that is, a free notary. Such a notary simply had no place in the new Soviet justice system; the principles of the Latin notary entered into an insurmountable contradiction with the principles of building a socialist society. As a result, the orientation towards the state model of the notary as a body of public jurisdiction was chosen.
The new notary legislation was supposed to meet the interests of the state, without hindering the development of civil turnover within the framework allowed by the NEP. The outcome of the discussions at the Congress and after it was the elaboration of a draft legislative act on the notary public. On October 4, 1922, the Council of People's Commissars of the RSFSR adopted the "Regulation on the State Notary". An important factor in the development of notarial legal thought was the October Revolution of 1917, which led to the scrapping of the old administrative legal system and the creation of a new one. As a result, the pre-rev-olutionary notary ceased to exist and a new, Soviet notary was created instead. Changes in the organization of the notary and the legal regulation of its activities became an objective reason for the emergence of such a trend of Soviet legal thought as notary legal thought. But its development was limited by the very nature of the new notary, which was created as a state institution [13, p. 213].
The modern model of the notary, which has developed in the Russian Federation, was formed under the influence of both economic transformations in society and changes in socio-cultural and legal reality, recognition of natural and inalienable human rights. By the 2000s, a number of social and legal problems had arisen in the country in various fields, including the sphere of real estate turnover. The growth of fraud, in particular raiding, which
migrated from business to shared real estate of ordinary citizens, has reached critical proportions. A huge number of people became victims of deception and outright crime every day, were left without a roof over their heads, without means of livelihood. Transactions, in 99% of cases concluded in simple written form, were repeatedly challenged in the courts. As a result, the reliability of the data from the state registers has become a big question. Such a sad "legacy" was inherited by the country from the liberal reforms of the 90s. It was they who excluded the notary from the system of registration of ownership of real estate, leaving citizens without legal protection and responsible assistance in situations where the most valuable thing was at stake. Russia was in dire need of ensuring the legality and stability of civil turnover. And the notary, in turn, acted as an institution that was able to take responsibility for solving this difficult, significant task throughout the country. The notary office of the new, non-budgetary formation had all the prerequisites for this [14, p. 112].
The legislation on notaries, adopted on February 11, 1993, corresponded to the new realities of the country's life. A fundamental novelty of the legislation became the possibility of performing a public legal function on behalf of the state by a private practicing notary who ensured self-financing of his activities on the basis of payment for performing notarial actions at notarial rates. The non-budgetary notary was initially formed and operated on the principles of self-organization; Each notary was a member of the notary chamber of a constituent entity of the Federation, which, together with the body of the Ministry of Justice, monitored the performance by notaries of their professional duties. The regional Notary Chambers, in turn, were members of the Federal Notary Chamber. The establishment of the Federal Notary Chamber became an important event in the legal and public life of the country. The founding conference on the formation of the FNP was held on September 22, 1993 in Moscow, uniting the notary chambers established earlier in a number of subjects of the Russian Federation. The first professional corporate organizations of notaries were established in Moscow, St. Petersburg, Nizhny Novgorod, Kaliningrad, Saratov regions. In 1994, 42 regional
chambers were already members of the FNP, by the end of 1995 - 71. The principles of self-government of the notary, laid down in the Foundations, turned out to be so effective that it was the experience of the notary that became an example for the subsequent development of self-regulatory organizations in Russia. The foundations provided for the parallel functioning of state notary offices and private practicing notaries. At the time of the adoption of the law, notarial actions remained the same, but due to the complication of civil turnover, their essence became more complicated. So, notaries have always certified transactions for the sale of houses in rural areas, and when, due to economic reforms, the real estate market appeared, notaries began to actively participate in it, and by analogy, certify, including transactions for the sale of apartments. With the emergence of new commercial relations, with the advent of private legal entities, notaries began to certify agreements on the establishment of legal entities. Notaries also began to protest bills of exchange and executive inscriptions in legal relations between private and commercial organizations. Later, as the most competent specialists, notaries were given the certificate of marriage contracts. Hereditary cases were certified by state notaries, and they began to pass to private notaries in connection with the gradual disappearance of state offices. The smooth transition to a non-budgetary basis took place quite quickly: by 1995, about 70% of the country's notaries had the status of private practitioners [15, p. 14].
Joining the International Union of Notaries has become an important task for the young low-budget Russian notary. This made it possible, within the framework of the fundamental principles of the Latin notary, to perceive the rich experience of notaries of the countries belonging to the union, to unify notarial documents and modernize the notarial process with the help of technical innovations, to study the international experience of notarial activity and its organization. This was supposed to promote the development of market relations in Russia, facilitate the activities of domestic entrepreneurs and foreign investors [16, p. 37].
The legislation on notaries has been characterized by stability for 20 years. At the moment, the organization and activities of the
Russian notary are regulated by the Law of the Russian Federation "Fundamentals of the Legislation of the Russian Federation on Notaries" dated February 11, 1993 No. 4462-I. And at the moment, the state is expanding the competence of notaries, trying to make notary services more attractive to citizens. While maintaining a high level of independence of notaries from both the notary corporation and the state, the responsibility of notaries for unethical behavior and violations in their work is strengthened, more effective control over notaries by notary chambers is ensured, measures are being taken to improve the skills of notaries [17, p. 68].
The active modernization of the legal regulation of the organization of the notary began in the last few years, as evidenced by the onset of a new period in the history of the development of Russian legislation on the notary. Recently, changes have been made to the above-mentioned normative act, some of which were significant.
Taking into account these changes, it can also be noted that, taking into account the needs of society and the increasing pace of development of innovations, new technologies are being introduced into the notary, electronic registers are being created, electronic interaction between the notary and government agencies on issues related to documents for registration of rights, transactions, legal entities is also provided, the possibility of registration of notarial documents is in electronic form, without hard copy. The introduction of new technologies will have a positive impact on the activities of the institute of notaries, since it allows to quickly carry out various types of transactions with documents, document circulation on paper will decrease and ultimately have a positive effect on the dynamics of civil turnover, accelerating the economic processes taking place on the commodity market in a particular field of activity.
For the further development of the notary it is necessary to give more authority to the notary in order, for example, to reduce the burden on the courts to consider and resolve certain categories of civil cases [18, p. 65].
In conclusion, the institute of notary should be developed in those areas where its stronger sides can be fully manifested, such as
independence and impartiality, the ability to entities from their own careless actions or ma-effectively protect insufficiently literate legal licious intent.
References
1. Filippova O.V. The formation of the notary in Russia, history and modernity // Notary Bulletin. - 2012. - № 9. - Pp. 34-45.
2. The historical formation of the Latin type notary from the middle of the XIX century to the present Begichev A.V., Frolova E.E. 2019. - 675 p.
3. Shapovalova L.L. Institute of Notaries in Russia: historical and legal aspect. - Stavropol, 2021. - 567 p.
4. Poltavskaya N., Kuznetsov V. Notary: A course of lectures. Ed. 2nd, supplement. and reprint.
- M.: IKF Omega-L, 2022. - Pp. 7-8.
5. Decree on the court No. 1 // Systematic collection of legalizations and orders of the Workers' and Peasants' government. - M.: Department of publication of laws, 1918. - Pp. 15-17.
6. Yudelson K.S. Soviet notary. M.: Gosyurizdat, 1959. - 375 p.
7. Vymenets S.P. Institute of Notary: historical and legal aspects of formation and development.
- St. Petersburg: A.I. Herzen State Pedagogical University, 2023. - 151 p.
8. Russian lawmaking of the 1920s: a collective monograph / under general edited by S.A. Bo-golyubov, D.A. Pashentseva, V.A. Selezneva. - M.: Yurlitinform, 2019. - 456 p.
9. Lenin V. I. Speech at the Fourth session of the Central Executive Committee on October 31, 1922 // Complete collection of Op. 5e ed. Vol. 45. - M.: Izdvo politich. litry, 1970. - Pp. 245-251.
10. Pashentsev D.A. Codification as a tool for constructing a system of legislation in the initial period of Soviet power (to the 100th anniversary of the first Soviet codes) // Journal of Russian Law. - 2018. - № 11. - Pp. 5-13.
11. Circular of the NKYU of the RSFSR dated March 2, 1922 No. 18 // Weekly of Soviet Justice. - 1922. - № 9. - Pp. 15-16.
12. Theses on the notary // Weekly of Soviet Justice. - 1922. - № 4. - Pp. 10-11.
13. Fundamentals of the legislation of the Russian Federation on notaries (approved by the Supreme Court of the Russian Federation on 11.02.1993 N 4462-1) (ed. from 07/24/2023) // Ros-siyskaya Gazeta, N 49, 03/13.1993.
14. Borisova E.A. Mediation and notary: the experience of France and Russia // Law. - 2023.
- № 9. - Pp. 191-204.
15. Bushtets N.V. The Russian notary: the historical path and the current situation (part two: the modern period) // Notary. - 2023. - № 4. - Pp. 48-52.
16. Bushtets N.V. The Russian notary: the historical path and the current situation (part one: the development of the notary in the imperial and the Soviet period) // Notary. - 2023. - № 3. -Pp. 38-42.
17. Iskenderova Ya.Yu. Analysis of changes in the legislation on the notary in 2023 // Notary.
- 2023. - № 2. - Pp. 2-5.
18. Borisova Ed. Legal bases of notarial activity: foreign experience. - M.: Gorodets Publishing House, 2023. - 325 p.
ИСТОРИЯ И ПЕРСПЕКТИВЫ РАЗВИТИЯ ИНСТИТУТА НОТАРИАТА
В РОССИИ
М.В. Попкова, студент
Научный руководитель: Е.А. Попкова, канд. филол. наук, доцент Калужский институт (филиал) ВГУЮ (РПА Минюста России) (Россия, г. Калуга)
Аннотация. Цель выполненного исследования заключается в рассмотрении исторической перспективы и развития института нотариата в царской России, в советский период и в современной России. Автор раскрывает положительные черты и недостатки этого института в различные исторические периоды его существования. В исследовании используется сравнительно-исторический анализ, что позволило определить перспективы развития института нотариата в России.
Ключевые слова: нотариат, история, перспективы развития, царская Россия, советский период, Российская Федерация.
