Kenjebayeva AS
Candidate for а Master’s Degree in Law

"Turan" University

Conceptual problems of notaries in activities complicated by a foreign element

Abstract: This article analyzes the problems existing in the notarial activities in the implementation of actions with the participation of foreign individuals and legal entities. In order to solve the existing problems there is a need to conduct a comprehensive analysis of notarial activities in the context of its close relationship with the private international law and on this basis to make recommendations for improving the work out notarial activities, complicated by a foreign element.

Keywords: notary public, private international law, foreign element, the problems of conflict, improving the notarial activity.

Conducting in our country reform of justice is aimed at building a complete and legal civil society, in which the interests of the state should be in harmony with the interests of the individual. In this case, the important role is played by notaries Institute.

Given the high rate of integration, targeted to attract foreign capital, foreign labor expansion of the activity of notaries outside the Republic of Kazakhstan becomes necessary.

Moreover, the modern development of notarial activity is inextricably linked with the increased role of all sectors of private international law and the strengthening of national legal institutions.

Note that consular offices plays an important role in the implementation of notarial acts abroad. The officials of these institutions have, as a rule, fairly broad rights in the notary sector. However, the consular activity very poorly considered in the legal literature.

According to some experts: «... notary activities include public legal and private legal beginnings, providing notaries important advantages when they face with situations of international legal order. On the one hand, the notary whose authority is an implementation of public power, is able to provide in the affairs of a foreign element in the protection of the significant social values that form the basis of our state and society. On the other hand, as a representative of a liberal profession, the notary is more than anyone should strive to meet the wishes of persons seeking him, finding legal solutions to achieve their goals. In the field of international relations, it allows us to find flexible and effective solutions that eliminate any uncertainty and divisiveness of the relations between the parties» [1, p. 18].

Notary operating in many countries on the basis of common principles and standards can play in this case a positive role. [2, p. 126-139].

Moreover, like any legal activity, exercise of notary functions obeys a certain logic and, therefore, can be systematized. For international relations the ultimate effectiveness of notarial act depends on the sequence of a notary to a greater extent than for domestic turnover. In this sense, the activities of notaries in the collision with the legal situation in liaison with foreign law and order, includes several steps:

1. Qualification of the legal situation as including a foreign element;

2. Selection of the law applicable in this case on the basis of the conflict rules;

3. Application of the substantive rules of the competent law enforcement.

With regard to the legal nature of certain legal relations, we note that they come from the following circumstances:

- The presence of foreign nationality from an individual or foreign origin of organizations participating in the notarial act;

- Location of the property, which is the subject of notarized transactions abroad;

- Ensuing of the legal consequences of performed notarial acts in a foreign country.

In general, notaries should adapt to international legal situations which, can be classified into three types depending on the time of occurrence due to the foreign rule of law:

Firstly, this is the situation, initially of an international character related to legal orders of several states. For example, it is widespread intermarriage in which the spouses have the nationality of the different states; inheritance of property located abroad or remaining after the death of a foreign citizen; mortgages, foreign-funded banks, etc.

Secondly, it was originally the internal relationship that would later become the one of the international character, vivid illustration of this situation is, for example, the regime of property relations in the families of refugees and immigrants, for which the change of residence in force of certain circumstances also necessitates the transformation of property relations.

For example, a couple with children from Kazakhstan moves for professional reasons in the US; Refugees from Afghanistan or Vietnam are held with their families in Kazakhstan for permanent residence; a citizen of the Republic of Kazakhstan makes the will of the country of his nationality, and then moved to Germany, acquires German citizenship and died in Munich. These cases from the very beginning related only to domestic law, become part of international life [3].

Finally, thirdly, the notary must take into account that some purely domestic relationship in the future are able to acquire an international character. Unlike the situations of the second kind, which already have an international character due to «previous» links with foreign law and order, in this case a notary takes into account the prospects of development of the situation, projecting it into the future in order to ensure the effectiveness of permanent legal actions committed by persons concerned, or the parties to clarify the legal measures that need to be taken in the event of a change of actual circumstances [1, p. 23].

Thus, the notary must take care of the legal side of the international situation which may occur between the parties later. To do this, he must not only know and correctly apply the rules of private international law of the country, but also inquire about the content of foreign law, including the rules of international tax law, which can be applied to relations with a foreign element. Notaries should not ignore this obligation, as otherwise they risk to see themselves responsible for any damages sides [4, p. 114-115].

We must also consider that an action for liability of a notary may be claimed in a country other, for example, the place of occurrence of adverse effects or place of performance of the contract. In turn, it is able to lead as a recognition of the responsibility of the notary on grounds other than those provided for by national law, as well as a significant increase in the size of such liability.

In contrast to purely internal relations, where the choice of the applicable substantive law is limited only by internal sources, and is carried out exclusively on the basis of substantive relations, in dealing with a foreign element that precedes the selection of a competent law enforcement. Simply put, before setting specific standards designed to define the rights and obligations of the notary deed, you must answer the question of the substantive law of a country from those with which the situation is due to be competent to settle the relations between the parties on the merits?

To answer this question it is necessary in all cases refer to the rules of private international law, the so-called conflict of laws rules.

The practical significance of the doctrine of the international private law is also undeniable. The complexity of the subject and the ambiguity of the interpretation of the same concept in the jurisprudence doctrine converted into one of the most important sources of information, which allows the use of a notary public make the right practical solution. The increased importance of the doctrine of private international law confirms the abundance of literature in various formats in almost all countries of the world [5, c.55].

Thus one of the trends apparent in many countries, is the emergence of research focused on practical, positive use of concepts and categories of private international law in various kinds of legal activity [6, p. 17].

The custom as a source of private international law is important for the regulation of relations with foreign element only in the sphere of business relations and can be used in the absence of appropriate material norms or agreement between the parties on this issue. However, in practice the domestic custom as a source of private international law is not widely used.

At the same time, we should emphasize the practical importance, which often have a notary for knowledge not only of the doctrine of private international law, but also to foreign jurisprudence.

There is no doubt that the above development trend of notarial activities, due to its close relationship with the international private law, have important theoretical and practical significance and require special research.

Based on this analysis of notarial activity in international private law, we have come to the following conclusions:

1. Notaries performs public law functions and the legal nature inextricably linked to the enforcement and jurisdictional activity.

2. Particular role in the implementation of the rights of citizens is played by the officials of consular offices, as they are assigned functions of notaries outside the State of nationality of individual. In particular, it applies to notarial acts in matrimonial and inheritance legal relations.

3. Formation of systems of international cooperation of notaries as the most promising area of development and improvement of the legal activities of notaries may, inter alia, be based on a consensus between the association (unit, union, etc.) in terms of recognition of the right of notaries take on foreign nationals (stateless persons) protests the violation of their rights, freedoms and legitimate interests. At the same time in the relevant international instruments should provide for an obligation of the notary as versed in matters of national and international law shall immediately bring the protest to the competent law enforcement authorities, the Ministry of Foreign Affairs, and (or) representative of the diplomatic mission.

4. Notary plays an important role in the regulation of private relations connected with foreign law enforcement. Notary is intended to protect the rights and legitimate interests of foreign entities. The functions of notaries in IPL action: identity documents for action abroad; acceptance of documents drawn up abroad; protection of property remaining on the territory of the State after the death of a foreign citizen; protection of property transferred by inheritance after the death of the local foreigner citizen; securing of evidence required for dealing in organs of a foreign state.

5. In our country, the notary applies the rules of the foreign law in accordance with the laws of the Republic of Kazakhstan and international treaties of Kazakhstan. Foreign law is not applied if it is contrary to the public policy of the Republic of Kazakhstan or international treaties of the Republic of Kazakhstan. These terms and conditions of application of foreign law are applied in relation to documents drawn up abroad. Furthermore, the documents made abroad must be legalized by Ministry of Foreign Affairs of the Republic of Kazakhstan; the requirement of legalization is not valid in cases stipulated by law and international agreements of the RK.

5. Applying foreign law, the notary must establish its content. For this purpose he may request the Ministry of Justice of the Republic of Kazakhstan or the competent authority abroad or ask for a foreign national who applied for a notary, to give the necessary explanations, including the texts of law and comments to them. If, despite the measures taken, to determine the content of foreign law is not possible, the notary shall apply the law of the Republic of Kazakhstan.

List of references:

1. Medvedev I. Private international law and notary services: Textbook. - 472 р.

2. Zaytseva T.I., Galeeva R.F., Yarkov V.V. Handbook notary. - Vol.1. - M., 2000 - 1232 c.

3. Wengler W. The General Principles of Private International Law // RCADI 1961. N 111. - P. 271-312.

4. Private International Law: Textbook // Ed. G.K. Dmitrieva. - M., 2001. - 650 p.

5. Boguslavskiy M.M. Private International Law. - 5th ed. - M., 2004. - 416 c.

6. Revillard M. Droit international prive et pratique notariale. - 5me ED. - Defrenois, 2001. - № 13. - P. 17 - 27.