Golofast V.A.
Candidate for à Master’s Degree in Law
"Turan" University
Actual problems
of constitutional and legal regulation of notaries in the Republic of Kazakhstan
Summary: With the development of private
property, with the transition to
a market economy, the role of notaries and notary definitely increased.
Assuming its constitutional duty to protect the rights and freedoms of citizens,
the state thus imposes on other responsibilities - the creation of appropriate mechanisms,
one of which is the Institute of Notaries.
Keywords: notaries,
the notary, the Constitution, legal regulation, foundation,
legal status, problems of functioning.
The Constitution has supreme
legal force and direct effect on the entire territory of the Republic. In the Republic
of Kazakhstan public and private property shall be recognized and protected
equally. Property obliges, its use must simultaneously benefit the society.
Subjects and objects of ownership, the scope and limits of exercise of rights of
the owners, guarantees of their protection shall be determined by law.
The Republic of Kazakhstan
recognizes and guarantees human rights and freedoms under the Constitution.
Basic legal principles of the
status of notaries are determined by the Constitution of the Republic of Kazakhstan.
Recognition and protection equally both private and public, and other forms of
property; the inadmissibility of exercise of the rights and freedoms with a
violation of the rights and freedoms of others, the equality of all before the
law; privacy, personal and family secrets; the right of everyone to own
property, possess, use and dispose of it both individually and jointly with
others; the inadmissibility of the deprivation of property otherwise than by a
court decision; the right to inheritance; the freedom of ownership, the right
to use land and other natural resources, if it does not damage the environment
or violate the rights and lawful interests of other persons; the right to qualified
legal assistance, etc. are protected by the fundamental law of the state.
Despite the lack of a clear
definition of the role of the notary as an institution for the protection of
citizens' rights, article 13, section 2 of the Constitution of the Republic of
Kazakhstan [1], which guarantees the right to qualified legal assistance,
involves the activities of lawyers and notaries. Meanwhile, a significant role
of notaries in the development of civil relations, contributing to their
stability and to the protection of the rights of citizens and legal entities
follows from the very essence of the Constitution.
Assuming its constitutional duty
to protect the rights and freedoms of citizens, the state thus imposes on other
duties - the establishment of appropriate mechanisms. The full function of such
protection is performed by notary, who certifies civil acts and contracts,
indicates certain facts and documents.
In accordance with the constitutional norm on the right to qualified legal
assistance, along with lawyers and officials, which are duly authorized to
engage in this kind of activity, such assistance is also entrusted to notaries,
representing in this case the notary as an institution of public law.
Performing of this
function by a notary is not limited to communication to interested persons of
an information on current legislation on a specific issue, but it also includes
a requirement for legal examination of all the conditions of the transaction,
clarification of the circumstances of the case, an explanation of the meaning,
values and legal implications of the transaction to the
participants, verification of compliance of the content of the transaction with
the actual intentions of the parties and the requirements of the legislation,
membership rights in real estate, legal personality, the powers of the parties
and their representatives, the establishment of identity of those who applied to
the notary, verification of capacity of individual.
In preparing the
draft notarial documents a notary must ensure that there is no error, and the
interests of participants are not prejudiced. At the same time the legal
assistance provided by a notary is not of a formal nature, as in the event of
doubt about the accordance of the transaction to the law or the true intentions
of the parties the notary must refuse to notarial acts or delay (pause) its
commission.
Notarial
correspondence is performed in accordance with the Instruction on notarial
documentation, approved by the Ministry of Justice of the Republic of
Kazakhstan in coordination with the authorized state body Archives and Records
Administration of the Republic of Kazakhstan.
Notarial
correspondence conducted in accordance with the legislation of the Republic of
Kazakhstan on languages. If the person who applied for a notary does not speak
the language in which paperwork is done, the texts of completed documents
should be transferred to him on his request for payment in accordance with
applicable law.
Thus, the
institution of notary gives the state the opportunity to fully realize their
constitutional duty to promote and protect the rights of citizens.
However, in practical work in the field of study, notaries are not rarely
encountered a number of problems. This is due to the fact that the essence of notaries
and its place in the legal system of the country has radically changed since
the beginning of reforms in the Republic of Kazakhstan, the construction of a
civil society.
In the formation of
the legislative framework, the basis of the legislation on notaries were
approached to world standard of liberal notary, existing in the form of a
liberal profession; notaries carry out their activities on the principles of
independence and impartiality, and have become liable for their activities.
The transition to a market economy, the emergence of private property, of new
types of contracts, development of entrepreneurship and its access to the
international market – all of this led to the need of reforming of the notary.
Its value increased dramatically.
The deep political
and socio-economic transformation in «... the adoption of the new Constitution of a democratic persuasion, the
emergence and development of market relations, constitutional recognition of
the equality of private, state, municipal and other forms of property caused
serious modification of the role and importance of many traditional
institutions and legal forms in a life of emerging civil society. Notary is
among these important, vital legal institutions having deep European and
Russian traditions» [2,
p. 4-5].
Although the
Institute of Notaries has not received, unfortunately, due reflection and
consolidation in the Constitution of the Republic of Kazakhstan, however, the
Basic Law of the country gave a new impetus to its activities.
More significant role of notaries in the development of civil relations,
contributing to their stability and to the protection of the rights of citizens
and legal entities follows from the very essence of the Constitution.
It is worth noting
that currently one of the most important legal acts in the field of notary is
notarial record keeping rules [3], developed in accordance with Article 4 of
the Law of the Republic of Kazakhstan «On Notary». [4] These rules establish
a uniform procedure for conducting the notarial office, the electronic register
in the Single Notary Information System: a notary in private practice
(hereinafter - the private notary); State notaries of public notary office.
Radical changes have taken place in our society have changed the nature and
importance of notarial activities. Acting on behalf of the Republic of Kazakhstan
and having regard to the Constitution and laws of the Republic of Kazakhstan,
the notary acts as a guarantor of equality of rights of the citizen and the
state in the sphere of civil transactions, as for him there is no priority of
state interests and the interests of society over the individual ones.
That notarial bodies
of Kazakhstan satisfy a significant portion of the citizens' legal security. At
the same time the basis of the legislation of Kazakhstan on notaries confers on
them the protection of the constitutional rights and lawful interests of
citizens and legal entities by committing notaries prescribed by the
legislation of notarial acts on behalf of the state, that is, all the basic
legal principles of the status of notaries are determined by the Constitution
of the Republic of Kazakhstan.
Meanwhile, the
problem relating to the constitutional and legal framework of the activities of
notaries was not adequately reflected in scientific works devoted to this
public-legal institution. The functions and the legal status of notaries in the
Republic of Kazakhstan were studied primarily in the plane of civil relations.
This is another problem complicating the full constitutional and legal
regulation of notaries in the Republic of Kazakhstan.
Since its revival
notaries had to fight and resist the lawlessness and incompetence that came
from the past relationship to notaries. Illegal appointment as a notary,
attempts to limit the competence of the Chamber of Notaries, unjustified
increase in tax rates, equating the notary to the entrepreneur - this is an
incomplete list of the problems that would not appear in the proper, competent attitude
to this important institution.
These circumstances
suggest the undeniable relevance of theoretical studies of constitutional legal
bases of the organization and activity of notaries and the development of
practical recommendations for their improvement.
A study of the
theory and practice of formation of notaries, as well as legislation on
notaries, the analysis of constitutional and legal regulations allows for the
conclusion that there is no necessary continuity in the development of basic
legislation on notaries, therefore a new periodization of the formation of the legislation
on notaries at different stages of the constitutional Development of the
Republic of Kazakhstan is offered.
Summing up, we came
to the following conclusions:
1. Though the Constitution of the Republic of Kazakhstan does
not fix the legal status of notaries, it guarantees everyone the right to qualified
legal assistance, including the one through the activities of the institution
of civil society, as a notary. In addition, the Constitution of the Republic of
Kazakhstan fixed the state guarantees of protection of rights and freedoms of human
and citizen, which are embodied in the establishment of various mechanisms for
their protection, including notarial activities.
2. The status of
notaries immediately follows and is based on the constitutional provisions,
essentially defining a set of rights, duties and responsibilities of a notary
to the community and the state, as well as the principles of its relations with
the state and other entities and individuals applying for a notary. Notary
provides notary public activities on behalf of the state. It is not an
entrepreneur; notarial activities are not aimed at profit and can not be
regarded as paid services.
Equating notary to
individual entrepreneurs in addition to terminological inaccuracies carries a
significant conceptual error.
3.
The activities of notaries in ensuring the constitutional
human and civil rights in the pre-trial protection of their rights, freedoms
and legitimate interests have great importance in the overall volume of
activity of law enforcement bodies, providing access to justice and effective
protection of their legitimate rights and interests in the exercise of judicial
review and the resolution of cases for citizens and entities. By implementing
the right of citizens to judicial protection, notaries are not a substitute for
the judicial system and does not justice; it is the exclusive prerogative of
the courts. Notarial acts fall under the institute of preventive, precautionary
justice, first of all, it directly protects the rights and freedoms of human
and citizen, which makes it possible to avoid the subjects of law to court for
the protection of the same rights.
The system of
constitutional and legal framework of notaries is a clear hierarchy of
normative legal acts led by the Constitution of the Republic of Kazakhstan.
4.
It is advisable to legislative consolidation mechanism
for determining the extent of damage caused as a result of improper notarial
acts for certification of transactions, the subject of which is subject to
assessment to be based on the price of the transaction, to calculate and pay
the notarial tariff on the base of this price. Not only the notary must be
involved in the creation of a fund of insurance compensation by signing the
individual risk of professional liability insurance of notaries - members of
the Chamber of Notaries. The legislation must forbid to perform notarial acts
of certification of a transaction if its value (and, consequently, any possible
damage on it) exceeds the sum insured notary.
List of references:
1. The Constitution
of the Republic of Kazakhstan, adopted at the national referendum on 30 August
1995, as amended by the laws of the Republic of Kazakhstan ot02.02.2011 number
403-IV // Bulletin of the Parliament of the Republic of Kazakhstan. - 1996. - ¹ 4. - Art. 217.
2. Aznaev AM
Constitutional and legal bases of activity of notaries in the Russian
Federation: synopsis diss. ... PhD: 12.00.02. - M.,
2008. - 27 p.
3. Order of the
Minister of Justice of the Republic of Kazakhstan "On approval of the Rules
on Notarial correspondence" from January 31, 2012 - ¹ 32. Registered in
the Ministry of Justice of the Republic of Kazakhstan February 27, 2012 ¹ 7445
// Kazakhstanskaya Pravda on May 26, 2012 - ¹ 154-156 (26973-26975).
4. The Law of the
Republic of Kazakhstan "On Notary", dated 14 July, 1997 ¹ 155, as amended by the laws of the Republic of
Kazakhstan ot29.12.2014 number 269-V // Bulletin of the Parliament of the
Republic of Kazakhstan. - 1997. - ¹
13-14. - Art. 206.