Some issues of legislative control over notarial acts performance: theoretical and applied aspect
Authors: Nelin Oleksandr 
Published: February 2023

In the article the author studies some issues of legislative control over notarial acts performance in Ukraine, herewith analyzing both the legislative framework and the current judicial practice. The attention is drawn to the need in further scientific research in the sphere of legislative control over notarial acts performance in the context of realizing the Concept of E-Notariat as well as understanding that the lack of proper legislative control encourages violations of rights and interests of both natural persons and legal entities. This imposes great moral and material responsibility on notaries public as the cost of mistake in such legal acts can be measured by multiple lawsuits against them.

The motivation of further reformation of the notary system and notary activities was determoned by the necessity of solving a number of theoretical and connected practical problems, as the notary system, in particular, is involved into the modern scheme of computerized society giving the way to the new generation of classified processes that go far beyond paper as the basic element of notary activities so far. The Internet and other electronic means enable us to perform information exchange, to make contracts and other legal acts more efficiently.

It was emphasized that the lack of clear and well-balanced concept of state legal construction creates additional difficulties for the national notaries public. Taking this into consideration, the conceptual foundation for the development of modern Ukrainian notary system should be the creation of legal, economic, organizational and technical instruments that could ensure introduction of the electronic form of the notary system.

That is why, nowadays, the scholars and practitioners are facing the task of forming the notarial procedure and background for general rules of performing notarial acts that should be applied only in certain logical unity and consequence, so that it would be possible to use them as a special order of notarial acts performance.

The author specifies that with the use of electronic technology in notary activities as well as the growth of the number and quality of notary services a person interested in performance of a notary act is able to contact the notary public in electronic form. Such application should be signed with his/her e-signature.

One more drawback in the current legislation is the lack of preservation of the notary process with technical means and recordation of notarial acts using audio and video recording. The recordation of notarial acts, audio and video recording are induced by the need to fix the circumstances impossible to be stated in the text of the notarial act itself. Herewith, it is worthwhile noting that in case of appeal of a notarial act performed in court these means could appear as evidence in the case.

The author concludes that:

firstly, it is appropriate to improve the procedural order of notarial acts performance by which notaries will be guided and which will administer their activities from the moment of a constituent’s application to his/her reception of a notarized and certified act;

secondly, the most recent Law of Ukraine «On notariat» does not take account of the current trends in the theory of notary process as well as fails to meet actual legal relationships in notary practices, that is why some complex amendments to the Law of Ukraine «On notariat» should be proposed. Hence, it is appropriate to regulate the norms of the substantive law with the new version of the Law of Ukraine «On notariat» and the norms of the procedural law — with the notarial-procedural code.

Key words: notariat, notarial event, notarial act, rules of notarial acts performance, legal gaps, e-notariat.