Some modern problems of notary protection and safeguarding subjective civil rights

Abstract

In the article the authour studies some theoretical foundations of the notion of personal civil rights «protection» and «safeguarding» by a notary. It has been specified that the protection and safeguarding of personal rights is performed by notaries only when there is a conflict within some notarial acts, such as: safekeeping of inheritance property, acceptance for safekeeping or on deposit by a notary, making enforcement inscriptions, noting of a bill etc. Given this, it seems necessary to find out whether in all cases the notary activities are being involved in the notion of «rights protection». It has been determined that unlike various ways of civil rights protection in court (Art. 16 of the Civil Code), a notary, in accordance with the Art. 18 of the Civil Code of Ukraine, performs the protection in only one way — by means of making a writ of execution. Notarial form of protection is also a jurisdictional form of civil rights protection; however some scholars (O. Vershynin, O. Mykhailova) refer it to an administrative form. In our opinion, it is difficult to agree with this, as notaries do not belong to public authorities, neither they perform administrative functions, but their activity is reduced to law enforcement. The above gives grounds to qualify the notary activity as a specific jurisdictional form of personal civil rights protection. The main means of implementation of the notarial form of protection is making a writ of execution on a debt document. Other scholars (T. Kiyko (Kovalchuk) referred, among other, a notarized consent of one of the parents to another one to bring their child out of the country, to protective functions of notariat. However, it should be noted that in all the cases a notary does not perform the protection of personal right in its traditional sense as implementation of a certain coercive measure aimed to restore a violated right or property of an injured person. That is why there some grounds to speak of preventive character of notarial activity and, accordingly, to refer it to the means of rights safeguarding but not protection. Based on that, the present version of the Article 18 of the Civil Code of Ukraine should be considered favorable. However, V. Marchenko does not share this opinion. He believes that this norm of the Article 18 of the Civil Code of Ukraine reduces the role of a notary only to protecting civil rights by making a writ of execution and, at the same time, ignores the safeguarding function as well as it does not reflect the essence of notariat hence causing failure to use all the capacity and potential of the institution. The author specifies that protection of the civil rights should be expanded on account of providing possibility of personal protection not only in case of violation, rejection or contestation of the rights, but also in case of real threat of their violation. It is appropriate to provide the preventive protection only in connection with an inevitable violation of the right in future if no preventive efforts will be used. The author made some conclusions about preventive character of notarial activity and, accordingly, referred it to the means of the rights safeguarding but not the protection. Key words: notary, notariat, notarial acts, personal rights, rights protection, rights safeguarding.