Notarial protection of the rights and legitimate interests of the parties in contracts requiring mandatory notarial form: prospects for development and problems of judicial practice

Abstract

This study focuses on the analysis of contracts that require notarisation. The author focuses on the dynamics of the development of "cases" of compulsory notarisation of contracts established by Russian law. Of particular relevance is the analysis of foreign civil legislation stipulating the notarial compulsory form for civil law contracts. The author insists that the purpose of this kind of legislation is to ensure the effective protection of the rights and legitimate interests of civil parties. Of particular importance in this regard is the analysis of judicial practice in cases of invalidation of notarized contracts carried out in the study. To develop criteria (grounds, signs) which would allow the legislator to systematically include agreements into the category of mandatory notarization. It is also important to find incentives to exclude cases of judicial invalidation of notarized contracts. The research was carried out using the following methods: general scientific dialectic, universal scientific methods, as well as special legal methods, including comparative legal method, systemic interpretation and legal modelling. It has been proved that the cases of obligatory notarial authentication of contracts in the civil legislation should be based on their basic functions which determine the direction of influence on the participants of proprietary contracts. It was proposed to consider a special object, absence of counteroffer, proprietary law orientation, necessity of protection of family interests, as well as interests of debtor in agreements of security nature as criteria of obligatory notarial authentication of agreements. It has been established that the tendency in the development of civil legislation is an expansion of the list of contracts which require obligatory notarial authentication. It is offered to establish in the norms of notarial law property responsibility of notaries in case of invalidation of agreements certified by them in a judicial proceeding. It is possible to state that the goal of the publication has been reached. A system of criteria for including contracts into a category of obligatory notarial certification is proposed, and also the idea of civil liability of notaries in case of invalidation of contracts certified by them in a court order is formulated. The author declares no conflicts of interests.