On some theoretical problems of the Modern notary in the Russian Federation: public law aspect

Stepanov Kirill Alekseevich ORCID: 0000-0002-1855-9481 Student, Department of Prosecutorial Activity, Ural State Law University named after V.F. Yakovlev 620137, Russia, Sverdlovsk region, Yekaterinburg, Komsomolskaya str., 21 minerality@yandex.ru Grigor'ev Ivan Vladimirovich ORCID: 0000-0003-1956-4650 PhD in Law Associate Professor, Department of Labor Law, V.F. Yakovlev Ural State Law University 620137, Russia, Sverdlovsk region, Yekaterinburg, Komsomolskaya str., 21 adarichi@mail.ru

Denisov Sergei Yur'evich Student, Department of Prosecutorial Activity, Ural State Law University named after V.F. Yakovlev 620137, Russia, Sverdlovsk region, Yekaterinburg, Komsomolskaya str., 21 serezha_denisov1990@mail.ru

On February 11, 2023, an important milestone was passed in the history of the development of the domestic notary, namely, thirty years have passed since the beginning of the "Fundamentals of the Legislation of the Russian Federation on Notaries" (hereinafter – the Basics of Notaries). Such a significant period determines the interest in the results of the current stage of development of the rules of organization and activity of the notary, the formed notary practices, determines the relevance of work to identify existing problems of the notary and search for possible solutions.

First of all, you should pay attention to what legal act regulates the issues of the notary in the Russian Federation. The "Fundamentals of legislation", as a type of legal act in force on the territory of the Russian Federation, were used before the adoption of the Constitution of the Russian Federation in 1993, and need to be updated. In particular, as an example of the already updated acts, one can cite the Fundamentals of the Legislation of the Russian Federation "On the Protection of Citizens' Health", which are currently replaced by the Federal Law "On the Fundamentals of the Protection of Citizens' Health in the Russian Federation", or the Fundamentals of the Legislation of the Russian Federation "On the Archival Fund of the Russian Federation and Archives", which are currently invalid and replaced by the Federal Law "On Archival Affairs in the Russian Federation".

However, not all the "Fundamentals of Legislation" are currently invalid and replaced by Federal Laws. So, in addition to the Basics of the notary, the "Fundamentals of the legislation of the Russian Federation on Culture" continue to operate. At the same time, it should be emphasized that in relation to the Basics of the Notary, repeated attempts were made to adopt the relevant Federal Law, which ended in failure.

Thus, P.V. Krasheninnikov in December 2013 submitted a draft Federal law "On Notaries and Notarial Activities" (No. 398234-6) to the State Duma of the Russian Federation. Despite the favorable forecasts, the approval of the draft by the Council of the State Duma of the Russian Federation, and later the accession of Deputy A.V. Kretov to the number of authors of the draft, a decision was made regarding the draft on the need to amend the text of the bill. Later, the resolution of the State Duma of the Russian Federation No. 4692-7GD of July 25, 2018 on the rejection of the bill was adopted.

But, it is worth noting that an unsuccessful attempt to adopt a Federal law does not indicate a halt in the development of legislation on notaries. Recently, norms have appeared in the Basics of the Notary, which have significantly improved legal regulation. Moreover, it can be seen that the following relatively new norms are based on the provisions of the previously mentioned draft Federal Law "On Notaries and Notarial Activities". Such norms include the following:

- refusal to license notarial activities, the license was initially clearly an unnecessary document (Federal Law No. 457-FZ of December 29, 2014 "On Amendments to Certain Legislative Acts of the Russian Federation");

- regulation of the qualification exam (Article 3.1 of the Basics of the Notary);

- creation of a unified notary information system;

- clarification of the rights and duties of a notary (Articles 15 and 16 of the Notary's Fundamentals) and a number of other norms.

In addition, modern elements of notarial activity were fixed in the Basics of the Notary, which include:

- creation of a unified notary information system (due to the appearance of a new Chapter VII.1 in the Basics about the notary);

- fixing the concept of machine-readable marking placed on a notarial document;

- Introduction of the Code of Professional Ethics of Notaries in the Russian Federation.

As O.V. Romanovskaya reasonably notes in her research ^[1], the listed changes had a positive impact on the current regulation. Nevertheless, despite the positive trends, the non-systemic nature of such changes leads to problems that are considered by the author of this study. In particular, the problem of the uncertainty of the nature of the notary and notarial relations has not been resolved to date, the issues of the status of the notary and his nature are debatable, in addition, the question of the concept of notarial legal relations remains unresolved.

Having analyzed the above, it is possible to come to a conclusion about the relevance of the discussion on reforming the legislation on notaries by making changes to the current regulation or by adopting an updated Federal Law "On Notaries and Notarial Activities". This discussion is primarily due to the positive changes that have been made to the current regulation, as well as the need to resolve the problems described above.

It should also be noted that the reform of the notary office will undoubtedly affect many related institutions, therefore, special attention should be paid to the substantive aspects of the proposed changes and the consequences they may bring, regardless of whether they will be introduced into the current Framework on the Notary Office or within the framework of the updated draft Federal Law.

Consideration of debatable issues should begin with the problem of the uncertainty of the nature of the notary and the relationships arising in the course of professional activity. Thus, the main problem of determining the nature of notarial relations that develop between a notary and other persons is that at the legislative level, the legal status of the notary himself is not clearly defined. Moreover, the nature of the notary itself is not defined.

There are many different points of view on this issue in the scientific literature. Thus, T.V. Yaroshenko includes a notary in the system of law enforcement agencies and calls it a universal form of protection and protection of the rights of persons, relying on the provision that notarial acts are performed on behalf of the Russian Federation ^[2].

G.V. Fadeeva takes a different position from T.V. Yaroshenko, agreeing that notaries have powerful, public powers and act on behalf of the Russian Federation, but, nevertheless, concluding that all of the above is not a basis for including a notary in the system of state bodies ^[3].

Some authors, in particular V.V. Yarkov and D.S. Buganov ^[4], note the public-legal nature of the notary, emphasize the public-legal nature of the notary system in terms of its content and organization.

The Constitutional Court of the Russian Federation also pointed out the public-legal nature of the notary in its Resolution No. 15-P dated May 19, 1998 "On the case of checking the Constitutionality of certain provisions of Articles 2, 12, 17, 24 and 34 of the Fundamentals of the Legislation of the Russian Federation on Notaries", further extending it to notarial activities in general, and also on the activities of notary chambers, which is reflected in the Resolution of the Constitutional Court of the Russian Federation No. 18-P10 of December 23, 1999.

It seems that at the moment the notary cannot be unambiguously characterized as a public authority or attributed to law enforcement agencies. It seems that the public-legal nature of the notary should be understood in a different sense from the above bodies. In particular, it is worth taking into account that the notary combines in addition to the public and private legal component. A.G. Nuriev also considers this argument in a positive connotation in his research ^[5], noting that a notary, despite the "publicity" of the functions performed by him, nevertheless remains a private person, as a result of which he is a carrier of a unique legal status, different, for example, from the status of an official.

Of interest is the approach of attributing notaries to civil society bodies, which has a number of public-law functions delegated directly by the state. This position is supported by E.A. Borisova, who, among other things, points to the combination of private law and public law features in the Institute of the notary, as well as a number of other scientists ^{[6, 7]}.

The Constitutional Court of the Russian Federation, in its Ruling No. 1714-O-O12 of December 8, 2011, called the notary a "non-state public institution", which is close in meaning to the above position on its attribution to civil society bodies.

Based on the current position of the Constitutional Court of the Russian Federation, in particular, on the ruling of the Constitutional Court of the Russian Federation No. 816-O of April 9, 2020 and the ruling of the Constitutional Court of the Russian Federation No. 817-O of April 9, 2020, it can be concluded that the notary is considered as a "public law institution". The court also points out such signs of the activity of notaries as "accessibility and publicity" and, among other things, emphasizes the public-legal nature of the functions performed by them.

The fact that notarial actions are carried out on behalf of the state also speaks in favor of the public-legal nature of the notary. Thus, A.I. Moskalenko writes that "the uniqueness of the legal status of a notary lies in the fact that he, being a private person called upon to protect the rights and legitimate interests of the subjects of the relevant legal relations, performs functions and performs tasks that are of a public nature" ^[8]. The legislator also emphasizes the public-legal nature, pointing out that the notary bases his activity solely on the law and carries it out on behalf of the Russian Federation.

When considering the nature of notarial legal relations, it is impossible not to mention the status of the key subject of these relations – the notary. So, for example, if we consider the status of a notary within the scope of the powers enshrined in Part 3 of Article 163 of the Civil Code of the Russian Federation, it seems that a notary, performing special powers in terms of certifying a transaction, is not a bearer of public authority and does not belong to the category of officials. In addition, the mere fact of certification of the transaction by a notary does not give it public-legal features. However, notarial actions are performed by him on behalf of the Russian Federation, which does not allow us to come to an unambiguous conclusion about the complete absence of public-legal features in this legal relationship.

When determining the nature of the notarial legal relationship, attention should also be paid to the question of the nature of the functions performed by the notary.

In particular, judicial protection of rights and subsequent enforcement carries legal consequences similar to those that manifest themselves when a notary performs a human rights function, for example, when certifying mediation agreements between the parties to a dispute, which underlines the importance of the human rights function within the notary.

A.N. Levushkin and O.S. Yurenkova speak in favor of the importance of the human rights function in their study, noting that "a notary protects the interests of a child by performing notarial actions on behalf of the Russian Federation. Another effective way to protect the rights and interests of minors is to notarize the parents' consent to the child's departure from the Russian Federation, since legislative acts impose the obligation to establish a kinship relationship between a minor child and parents (adoptive parents) on the basis of a birth certificate (certificate of paternity) or the rights and powers of a guardian or trustee only to the notary" ^[9].

We should not forget about the protective function of the notary. As K.A. Korsik notes in his research: "The Notary carries out the prevention of the rights, freedoms and legitimate interests of citizens. First of all, this refers to its role in ensuring the rights of socially unprotected categories of citizens, for example, minors and the incapacitated" ^[10].

At the same time, it should be noted that the above functions are accompanied by a certain form. In our case, the legislator establishes a strict form in relation to certain notarial actions. For example, according to Article 59.1 of the Notary's Fundamentals, in relation to the certification of a mediation agreement, an imperative requirement is established that the notary performs the appropriate action in the presence of the mediator (mediators) under whose "guidance" this mediation agreement was concluded.

Summing up the above, the author of this study highlights the characteristic features inherent in these relationships. Thus, notarial legal relations occupy an independent place in the system of legal relations, have a public-legal nature, are both law enforcement and human rights, and a notary is a mandatory subject of such a legal relationship.

It is important to note that the previously mentioned conclusion about the public-legal nature of the notarial legal relationship also indicates the fact that with this approach, disputes arising from notarial legal relations also have a public-legal nature and should be considered according to the relevant procedural rules. That is, not in a lawsuit, but in the order of administrative proceedings. This position is supported in their research by Mikhailova E.V. ^[11], Fadeeva G.V. ^[3] and other scientists.

After considering the problem of the uncertainty of the nature of the notary, it should also be said about the problems of the conceptual apparatus that must be resolved. In particular, an urgent problem is the lack of unity in the definition of the concept of "notarial legal relations", the classification of such legal relations and the specified scope of distribution of this regulator.  The relevance of this problem is also supported by various approaches of scientists in the framework of considering the classification of legal relations arising with the participation of a notary, which gives rise to unreasonable terminological diversity, lack of a common understanding.

Article 2 of the previously mentioned draft law of the Federal Law "On Notaries and Notarial Activities" contained an indication of the scope of notarial legal relations, despite the fact that the definition itself was absent in the draft Federal Law. In addition, other regulations do not contain this concept, and the scope of this regulatory regulator is not specified.

Turning to the positions of the scientific community, it should be said that a number of scientists consider notarial legal relations mainly in the context of the main substantive legal relationship, without distinguishing the category of special notarial legal relations.

In particular, H.V. Peshkova points out that legal relations in the field of notarial activity are multidimensional in nature, being not devoid of either tax-legal or budgetary-legal content. While Z.A. Iskanderov and A.N. Levushkin consider notarial legal relations in the context of civil legal relations at all ^{[12, 13]}. I.A. Kosareva considers notarial actions as the basis for the emergence, modification, termination and confirmation of civil legal relations ^[14].

There is also a second group of scientists, for example, V.V. Yarkov, A.V. Begichev ^[15], A.I. Moskalenko ^[10], O.V. Moiseeva ^[16], who in their research adhere to the position of distinguishing the category of special notarial legal relations and consider procedural relations related to the commission of notarial actions.

The author of this work supports the position of notarial activity as an object of special regulatory regulation and considers it the most complete and justified on the following grounds.

The system-forming features of the branch of law, of course, include the presence of a special subject. Within the framework of notarial law, notarial actions are a special subject, which are the motive for persons to apply to notaries due to the fact that it is these persons who are authorized to carry out such actions. At the same time, V.V. Yarkov notes that the subject of notarial law may also include procedural and procedural legal relations.

As I.N. Kashurin notes: "one of the conditions for carrying out notarial activity is the existence of certain procedures within which a notary acts. The peculiarities of legal relations arising in the field of notarial activity and having a multidimensional legal nature are directly related to the notarial process" ^[17].

In addition, A.G. Nuriev identifies a new additional system-forming feature of complex legal branches - the presence of its own procedural legal norms - and, using the example of notary law, suggests distinguishing procedural norms (norms of notary law) ^[18].

In substantiation of the specifics of notarial relations, it is also necessary to refer to the previously mentioned public-legal status of a notary, the rights and obligations that such a status carries.

Having analyzed the above positions of the authors, it should be said that there are all grounds to talk about the need to separate independent notarial legal relations.

In particular, notarial legal relations should be understood as a public relation regulated by the norms of the legislation on the notary, which has a fixed procedure for performing certain notarial actions that are performed by a special person (notary) to achieve both law enforcement and human rights goals, which stems from the nature of such relations. It should also be pointed out that the goals pursued by such relations ensure the existence of a special procedural form of performing certain actions, and the notary in these relations is a full-fledged and key subject, since he bears legal and property responsibility for the actions he performs.

Despite the thirty-year history of development, at the moment it is impossible to conclude with certainty that the legislation on the notary is devoid of controversial issues and gaps in the regulation of certain aspects. All of the above leads the author of the study to the conclusion that the discussion on reforming the legislation on notaries is currently of increased relevance.

Despite the regular, point-by-point changes in the current act, caused by the essence of the current situation and the identified problems, "holes" in regulation, it seems that against the background of the positive changes noted in the work, which were made to the Basics of the Notary, the problematic issues described in the study are solvable within the framework of the act currently in force.

Moreover, it is important to clarify that in the event of the adoption of a new Federal law, it should not follow the path of breaking existing and working standards, it, through point changes, should resolve the basic issues that have long been sanctified by the notary community and, among other things, are the subject of research of this work.

Such issues may include: the concept of a notary and a notarial legal relationship; determination of the nature and nature of a notarial legal relationship; resolution of the issue of the nature and nature of the functions performed by a notary; the status of a notary clearly enshrined in law. Of course, such changes should be made based on the positions of the Constitutional Court of the Russian Federation, the opinion of the scientific and professional community.