The implementation of the reform of the Institute of Notaries in the Warsaw Judicial District and the Baltic provinces of the Russian Empire at the end of the XIX century

Gavrilov Stanislav Olegovich Professor; Department of State and Administrative Law; Kemerovo State University 650000, Russia, Kemerovo region, Kemerovo, Krasnaya str., 6 gavrosh666@mail.ru Myrzalimov Ruslan Muratbekovich Doctor of Law Professor; Department of Constitutional and International Law; Altai State University 61 Lenin Ave., Barnaul, Altai Territory, 656049, Russia ruslanmm@gmail.com

Myznikov Alexandr Evgenjevich Postgraduate student; Department of State and Administrative Law; Kemerovo State University 650000, Russia, Kemerovo region, Kemerovo, Krasnaya str., 6 constlaw@kemsu.ru

The notary public is a public law institution designed to protect and protect the rights and legitimate interests of participants in civil turnover by giving the qualities of stability, order and legal certainty to civil turnover.

In its purpose, the Russian notary can be considered as an integral part of a Latin-type notary, since it is based on common legal principles with it ^{[4, p. 18]}.

The legislative formalization of the notary, which gradually took shape during the XVIII – XIX centuries, was characterized by extreme fragmentation and inconsistency. According to the pre-revolutionary researcher A.G. Gasman, "... due to the dispersion and decentralization of the notary business, ... the lack of properly and well-organized supervision of notary institutions, there has long been an urgent need for a radical reform of the entire institution aimed at uniting it into one integral government institution" ^{[1, p. 46]}

The judicial reform of 1864 could not ignore the notary. The centralization of the institute and its uniform functioning, which became the central ideas of the Provisions on the Notarial Part of 1866, assumed the provision of normal interaction between the court and the notary as bodies acting on behalf of the state in the interests of protecting and protecting civil rights. ^{[6, p. 9.]}

At the same time, we agree with the researchers who argue that the nature of the Judicial Reform of 1864, which radically changed notary activity, could not but be influenced by the gradual transformations of the judicial part, extreme slowness in their implementation. So, by the end of the 1880s, the pre-reform court was still preserved in 23 provinces; the institution of the notary did not undergo significant changes in them either ^{[2, p.56]}.

The gradual and slow nature of the transformations, coupled with the need to find a compromise with local elites, led to the fact that one of the key ideas of the notary reform – the uniform nature of the institution – was not fully implemented.

Thus, it was only in 1875 that the Notarial Provision was extended with some changes to the provinces of the Warsaw Judicial District, and in 1889, with significant changes, it was introduced in the Baltic provinces. Due to the importance of these changes, which constitute very significant exceptions to the general imperial Provision on the notarial part, the latter deserve careful scientific understanding, which was the subject of this article.

In accordance with the legislation, the management of the notary part in the Warsaw Judicial District was entrusted to notaries attached to the mortgage offices of district courts and magistrates. Notaries at the county mortgage offices could perform their official duties not only within the county to which the legislature of the office extended, but throughout the judicial district in which they were located. The notaries who lived in the Polish provinces were under the organizational and legal subordination of the district courts located here. At the same time, we note the fact that in some urban centers of the Kingdom of Poland, the positions of notaries were not established. In this case, some notarial actions (registration of powers of attorney, certification of transactions, the amount of which did not exceed five hundred rubles (this "ceiling" was established on the basis of paragraph 248 of Article 2 of the Charter of Civil Proceedings – author's note)) were entrusted to judicial officials – judges of the municipal courts and magistrates. These court officials could certify the world records, petitions, and arbitration records mentioned in articles 1361 and 1374. The Charter of civil proceedings. At the same time, in the case of a special decision of the Senate, the municipal courts were entitled to testify to these acts in those areas where there were notaries ^[10].

Private acts on the transfer of property rights in relation to immovable property, restriction of the right of land ownership and transfer of such, contracts for the division of marital property, any kind of wills, both public and secret, and property agreements related to mortgages were not subject to attestation by magistrates and municipal courts.

Sometimes individual notarial actions were the exclusive prerogative of judges. In particular, we are talking about metric records kept at churches, which are subject to subsequent referral to the Department of Heraldry, the certification of which, according to a special decision of the Governing Senate, held in 1893, was the exclusive right of magistrates ^[11].

It is interesting to note that the justices of the peace, members of the magistrates' courts and officials temporarily appointed to correct notarial duties did not provide any collateral. This feature, however, was far from the only one and not the most important.

Some of the features of the notary office in the provinces of the Kingdom of Poland were related to the peculiarities of the organizational and legal structure of the institute. Thus, the position of senior notary provided for by the Imperial Notary Regulation of 1866 was absent here.

The arrangement of notarial archives was also noted with specific features. Here they were connected to the mortgage archives, which were attached to the mortgage departments (provincial and county). Their management was entrusted to the secretaries of mortgage departments, who performed those duties that in the central provinces of the empire were the exclusive prerogative of senior notaries. In particular, they monitored the safety of the originals of the acts and their copies, samples of seals, including the mortgage department, and signatures. They were also authorized to make and issue copies and extracts of notarial acts and documents, checked the acts received from notaries in the archive annually, affixing them with their signature.

The procedure for drawing up notarial acts was of particular interest: they were recorded on separate sheets on the established stamp paper and were not initially entered into the act books. At the end of the year, notaries were required to combine them, together with appendices, in chronological order in a special notebook, which was notarized and submitted together with the register to the mortgage archive.

The specifics of the content of notarial actions are much more interesting. All acts on the territory of the Polish provinces are in Con. XIX beginning . XX centuries. could be performed, at the discretion of the parties, by "home" or notarial procedure. The exception was agreements on the alienation of immovable property, as well as acts related to the restriction of property rights in relation to the latter – they must necessarily be performed at notaries and otherwise recognized as invalid.

Acts performed by notaries were called official or notarial. Russian Russian translation was granted to the perpetrators of the acts, in addition to the Russian text, its Polish translation, and the original was considered to be the Russian text.

Acts on the transfer or restriction of ownership of immovable non-mortgage property, committed by a notary who does not belong to the relevant mortgage office, in order to obtain proper force, had to be submitted for approval to the chairman of the local district court. Acts relating to immovable property, which fell under the scope of Article 5 of the Supreme Decree of 1864 ^{[7, p.391]}, or did not exceed the amount of one discharge, were provided to the local justice of the peace, under which the mortgage department consisted. In both cases, these acts were submitted within one year from the date of their commission, personally, by the parties, or on their behalf by one of the local notaries, or through an attorney. Upon approval by the chairman or the justice of the peace of the act, a copy was removed from it in the mortgage office, which was transferred to the archive for safekeeping.

Extracts issued by a notary from those acts to be executed in other regions of the empire, which were to be converted into serf acts, were presented to the chairman of the relevant district court to certify their authenticity. In order to verify the authenticity of the presented extract, the chairman of the district court compared the seal and signature of the notary who issued it with samples of the signature and seal stored in the mortgage office.

Authentication of the signatures of persons who were granted the right to commit or witness acts within the district of the Warsaw Judicial Chamber, in cases where these acts were subject to execution outside the Russian Empire, was carried out by the chairmen of the district courts and world congresses of the district Chamber; the authenticity of the signature of the chairman of the court or congress was certified by an official of the Ministry of Foreign Affairs, who was attached to the Warsaw The Governor-General.

We add that notarial acts drawn up abroad could be submitted in the provinces of the Kingdom of Poland for entry into mortgage books; at the same time, the acts were subject to a fee in favor of city cash registers in the amount of 50%, minus stamp duty, which followed to the treasury ^[9].

The organization of the institute of notaries and notary practice in the Baltic (Ostsee) provinces were noted as significant features ^[8]. First of all, it should be noted that the Regulation of 1866 was extended to these territories only in 1889, however, at the same time, the imperial legalization underwent essential changes and additions in terms of the structure of serf administrations and the procedure for the production of serfdom.

The construction of notary bodies differed in certain specifics. As in the territory of the Kingdom of Poland, there were no senior notaries at the district court in the Ostsee provinces, and their duties (issuing extracts, copies of acts, monitoring the state of archives) were entrusted to the secretaries of the fortress departments in whose district they were located. There was a single archival system that stored not only notarial deeds, but also seal impressions, samples of signatures of notaries; archives of serfs were not separated from, actually, notarial ones.

At the same time, each notary was obliged to keep only one record book, in which all acts performed by the notary procedure were entered.

The legislation clearly defined the list of cases subject to mandatory notarization. Thus, on the territory of Courland, any donation in the amount exceeding 75 rubles was notarized ^{[12, Article 4473]}. In Livonia, marriage agreements and spiritual certificates were subject to notarization. In the event that the contract determined the heir to the property, both in Livonia and in Estonia, this agreement also had to be signed by a notary ^{[12, art. 2996]}. In addition, alimony obligations and agreements on the equalization of the rights of children from different marriages were notarized in the Estonian province ^{[12, Articles 2514, 3602]}.

All other transactions, including with real estate, could be concluded, at the request of the parties, both notarially and "at home", i.e., a simple written contract that did not require notarization.

The specific features of the procedure for registration of a notarial transaction are interesting. Thus, witnesses in the commission of acts had to be predominantly male, women could only become witnesses in the absence of men.

Russian Russian text was provided to persons performing notarial acts, in addition to the Russian text, the statement of the act in one of the languages used by the local population, with the responsibility of the notary for the accuracy of the translation; at the same time, the original, as in Poland, was considered the Russian text.

The rules for the construction of serfdom in the Baltic Provinces, regulated by the Regulations of 1866 (Articles 286 – 301), deserve a separate characteristic. Prior to the adoption of this legislation, the very concept of "serfdom transaction" was marked by the property of legal uncertainty. Only one thing was obvious: this kind of transactions and the acts fixing them, whether mortgages, bills of sale, or others, were associated with the transfer of real rights to immovable property. As for the procedure for their registration and nostrification, the legislation was limited only to vague wording about their conclusion and registration "with serfs" at the chambers of the civil court, without explaining what this phrase actually means.

The "Regulation on the Notarial Part" adopted in 1866 established a clear mechanism providing for a clear distribution of functions for concluding serf transactions. For committing The notaries were responsible for the appearance acts (drafting, recording in the notary book, making an extract from it). The notary archives, headed by a senior notary, were given further powers to formalize serf transactions. The latter, upon receipt of a notarized extract, approved it, fixed it in a serf book and a special register of serfdom. The extract from the register was already called a serfdom act, and its compilation meant the completion of the serfdom transaction^{[5, p. 327]}.

Obviously, such a system of serfdom was not suitable for the Baltic provinces, where the positions of senior notaries, as noted above, were absent.

In these provinces, at the congresses of magistrates, there were special "Fortress departments" for managing mortgage parts of the Baltic provinces: the jurisdiction of each department extended to the district of the legislature of the local world congress. Accordingly, in relation to the fortress departments, there was a system of supervision by the world congresses in whose district they were established, and the rules of internal order and office work in the fortress departments and archives were established by special orders of the world congresses ^{[8, Articles 286-301]}.

The personal staff of the fortress departments included the chief (most often he was the chairman of the Congress of Justices of the Peace, only in the Riga–Volmar World Congress the duties of the chief were assigned to a special justice of the peace – author's note), the secretary, his assistant (in the Riga -Volmar and Rovel-Gapsalcom congresses) and clerical officials.

In the serf offices established in cities that own a small amount of real estate, the positions of secretaries were not established. Where they existed, the right to replace them was granted to anyone who wished, according to the results of passing a special examination to the Chairman of the district court for knowledge of the forms of serfdom and notary proceedings necessary for the execution of this position of laws, demonstrating the ability to correctly draw up notarial acts and work with archives, for which the secretary was responsible. However, persons who had served for at least three years as assistant secretary of the serf department were exempt from this test.

Secretaries were appointed and dismissed by the Minister of Justice on the recommendation of the heads of the serf departments; before taking office, they were sworn in at an open court session.

For the performance of their notarial acts performed under the supervision of the head of the serf office, the secretaries did not deposit pledges of notarial acts related to the strengthening of acts, they do not deposit pledges. They are also entrusted with the management of archives.

Let's consider the content of the temporary rules on the procedure for the production of serfdom in the Baltic provinces.

It should be noted that the serf offices launched the process of serfdom production in the presence of an application from an authorized person. The circle of such was limited and included, in addition to the owner, persons alienating or acquiring the relevant property rights. In some cases, serfdom could be started at the insistence of a judicial instance or a representative of an administrative management body. Other persons could declare the initiation of serfdom proceedings only if they provided a notarized power of attorney. The latter was not required only in the case when the application was submitted by the notary himself, who drew up the acts on which it was based, or the powers were indicated in the act itself.

Applications for reinforcement were made orally or in writing and could be sent by mail.

Individuals who applied to the serf offices with applications for the production of serf records had to certify their identity and legal capacity either by notarization on the petition itself, if the request was made in writing, or provide a certificate to the secretary with the entry of the request in the turnout book (if the request was stated verbally). Together with the application for the production of fortifications, all acts and documents must be submitted that certified the rights to be strengthened, or information entered into the fortress books, information on the consent of persons losing property rights to draw up a fortress, receipts for payment of duties established by the Code of Local Laws of the provinces of the Ostzei ^{[12, art. 3012]}.

In addition, in requests for strengthening rights on the basis of a court decision, as well as for making notes on a court ruling on securing claims, a writ of execution was submitted.

According to the Regulation of 1866, acts and documents committed or witnessed abroad, in court or at a notary, could serve as the basis for strengthening proceedings only if the authenticity of the signatures on the act and the right of the court or notary to commit or witness the act or document was certified by the Russian embassy, mission or consulate ^{[8, Article 342]}.

All demands and requests for the production of fortifications were considered by the Head of the fortress department, who in such cases was obliged to make sure:

1. Do the requirements and requests comply with the rules set out in the Notarial Regulation;

2. Are other rights already included in the serf books preventing the production of fortifications;

3. does the right, the strengthening of which is requested or demanded, belong to the number to be entered in the serf book;

4. Whether there is anything illegal in the acts or documents on which the request or requirement for strengthening is based ^{[8, Articles 336-344]}.

For each such request or request, the head of the serf department issued a special definition, which was immediately entered into the serf journal. The definition determined the satisfaction of a request or requirement, or their abandonment without consequences. In the case of a positive decision, the definition of the fortification included an indication of the fortress book, to which the original act or document was attached, as well as the register and the text to be recorded. Otherwise, the definition should have set out the reasons why the strengthening could not be carried out.

It should be noted in particular that the determination on the suspension of fortification, until the removal of obstacles, was not allowed, and if the demand or request was subject to satisfaction only in part, then the head of the fortress department issued a resolution on the production of fortification to the extent that it could be allowed, denying the rest of the demand or request.

Immediately after the meeting, a copy with the definition of the head of the fortress department, which determined the production of fortification, was drawn up with the signature of the chief and the secretary's seal on the original of the act or document itself. The definition was announced to the persons who initiated the production of the reinforcement. They could appeal against the decisions of the head of the serf department, who refused to strengthen or allowed strengthening not in the same volume and form as indicated in the application.

The existence of special temporary rules on the procedure for the production of serfdom for the Baltic provinces did not mean that the imperial legislator did not strive to unify legislation on notarial practice throughout Russia ^{[3, p.112]}. Thus, in relation to the Regulation on the Notary Part of 1866, the same rules on the procedure for strengthening purchase contracts for peasant rental plots were established in the Baltic States as in the whole of Russia. They replaced the special judicial decisions on the procedure for strengthening (corroborating) purchase contracts for peasant rental plots that had previously been in force in the Baltic provinces, in particular on the island of Ezel ^{[8, Articles 371-377]}.

However, in this part of the Regulation of 1866, certain deviations from the general rules were allowed on the territory of the Baltic provinces. So, they were not applied in cases when the land being sold was already separated from the mortgage responsibility of the main estate, when a peasant rental plot was bought by a landowner to join the estate, or when, when selling peasant (compulsory) land together with myznaya, most of the plot consisted of myznaya land.

Thus, the analysis of the organizational and legal structure of the notary and notarial practice is carried out. XIX – beginning . The 20th century testifies that one of the key ideas of the notary reform of 1866, which consisted in the uniform organization of the institute throughout the Russian Empire, was not fully implemented. The final unification of the notary system will take place already in the twentieth century in the process of creating its Soviet model.