How to appeal against the actions of a notary?

Perhaps there are a number of professions from which you can not make mistakes. Error doctor can cost the patient lives, the error is a judge can break the life of an innocent person convicted, etc. Of course, no such fatal error causes the notary, but still ... After turning, it seems, seek professional help, we hope that the person who knows the intricacies of law, will solve our problems, will provide expert answers, give competent advice. Unfortunately, in practice this is not always the case. As noted by the Ministry of Justice of Ukraine, the number of complaints against notaries public to be on the departments of justice last year, declined relative to 2008. Although the figure is still quite large - 942 complaints. Of course, most of them turned out to be unfounded, but the fact remains. Someone notary refused the performance of notarial acts (not issued a certificate of inheritance, etc.) or, say, a certified deal, but in violation of the law. What to do? Is it possible, to whom and how to complain about a notary? So, it should be understood that in its performance of any lawyer, whether public or private, is bound by the Law of Ukraine "On Notary". In addition, another important document in the notary profession is, and instructions on how to notarial acts by notaries of Ukraine (Order of the Ministry of Justice of 03.03.2004 № 20 / 5, as amended from 26.03.2010 № 615 / 5). Notary almighty! What exactly is meant by notarial acts? According to the Law on Notaries and the Regulations, notaries perform the following notarial acts: Make transactions (contracts, wills, trusts, etc.) issue certificates of inheritance, showed fidelity copies of documents and extracts from them; certify certain legal facts make writ of execution and much more. True, the mentioned documents provided by the notary and the right to refuse to perform notarial acts. Thus, according to Art. 49 of the law (and paragraph 31 of the Regulations), the notary refuses to turn if the commission desired action contrary to the laws of Ukraine, for example, if a party to the transaction of real estate asks her to authenticate, although that is committed with apparent violations of civil law. Waiver will be obtained in those cases, if a citizen does not submit data (information) and documents necessary for the commission of notary (the heirs of the law does not provide proof of relationship with the testator, etc.) notarial acts to be quite different notary. Grounds for denial of a notary can be no doubt that an individual who has requested to the notary public, aware of the importance, content, legal implications of a notarial act or a person acting under the influence of violence, etc. Often, once the receiving notary public, the citizens of timid, saying in a whisper, for fear disturb the atmosphere of mystery notarial profession, where the notary - king and god and his word was law. Well, no. The notary has certain responsibilities and scope of his omnipotence. For example, a notary public is prohibited unreasonably refuse to perform notarial acts. So, say if you do not issue a certificate of inheritance is not quite clear on the reason or reasons understandable only to a notary, you are entitled to demand the refusal in writing. In addition, the notary is obliged to explain to you the order of its (non) appeal. By the way, to refuse a notary notary must, within three working days to make an appropriate decision (Article 49 of the Act). In turn, Section 32 of the Regulations clearly stipulates that the very failure of the notary must be motivated, ie, in the text explaining the reasons for refusal, and as the said regulations, and then for it establishes certain requirements. In particular, the decision of refusal shall indicate: 1) The date of a ruling, and 2) name of the notary, made the decision, the name and address of the public notary office or the name of the notary's county and the address of the workplace of a private notary 3) the name of a citizen who has applied for a notary action, his place of residence or the name and location of legal entity, and 4) an indication of the action, the commission is please contact (summary request), 5) the reasons for which the commission denied a notarial act, with reference to existing legislation; 6) order and terms of appealing the denial with reference to the civil procedural law. Unfortunately, the known situation where a notary, taking advantage of legal illiteracy of the citizen, not only refused him a notary, but also to issue a written denial. In this case, you should not spoil their nerves and do not waste your own time, and simply write a letter requesting a reasoned refusal of the notary. But to send this document to a registered letter with a list of attachments. Then you will have a failure in the proper form (which can be appealed), or evidence to challenge the action (or inaction) of the notary. Who and how to complain? Appeal against a notarial act or refusal to its commission, as well as notarial act must be turned to the court. Incidentally, it is important to understand that notaries can not be regarded as representatives of public authorities, and therefore wrong to assume that with such complaints should go to an administrative court. Such statements are served by the rules of action proceedings. In other words, to claim the (either to appeal the actions of a notary, or to appeal the denial of a notary) must apply to the district court, usually on the defendant. However, there is a caveat. If you file a claim, wishing to appeal the notarial act (for example, a certificate of a notary public of the illegal transaction), and actually file a claim for recognition of the transaction to be invalid, then the defendant is not a notary, which is not explained to you or incorrectly explained the consequences of the transaction, and the side of transaction. The notary will also be a third party. And yet. Article 50 of the Law on Notaries establishes the rule that "the right to appeal a notarial act, or failure in its commission, the notarial act is a person's rights and interests which relate to acts or acts." This means that a plaintiff in a case can be either address itself to a notary public citizen, or those persons in respect of whom were committed notarial actions (of course, they may resort to the help of representatives of the court). And the notary can punish the way, for all notaries public, operating on the territory of Ukraine, watches vigilantly Eye - The Ministry of Justice, which established the Commission for consideration of the cancellation of certificates of eligibility to notarial activities. So, the notary may lose issued him a certificate for repeated violation of applicable laws in the commission of notary or flagrant violation of the law, harm the interests of the state, enterprises, institutions, organizations and citizens (Article 12 of the Act). In addition, according to Art. 27 of the Law on Notaries, the harm caused to a person as a result of the actions or negligence of a private notary, shall be compensated in full. The very same amount of harm is determined by agreement between the parties or the courts. The jurisprudence of Notaries, "reinsurer" is waiting for the court often notaries, in deciding to commit or not those or other notarial acts, reinsured, the principle of "better to refuse than to violate the law." Usually, the reason for such decisions is ignorance of existing regulations. However, there is a court that can investigate the situation. So, in September 2010, one of the city courts of Dnipropetrovsk region considered the suit to a private citizen to compel the notary to perform certain actions (case № 2-973/10). In particular, the plaintiff requested the court to certify the notary contract of sale of a house. The court found that a citizen requested the notary to process the purchase contract at home, under its ownership, but the lawyer refused the permit agreement, citing the fact that there is no cadastral number of the land on which the house is located. It should be noted that a notary public citizen was granted a decree refusing to perform a notarial act. After examining all the materials of the case, after hearing the plaintiff (the defendant failed to appear at the meeting and asked to hear the case without his participation), the court reached the following conclusions. First, the plaintiff as the owner of real property illegally and arbitrarily set barriers and restrictions on the disposition and alienation of his estate. Any other grounds for denying certification of the agreement are not available. Secondly, according to part 3. 49 Law of Ukraine "On Notary" notary to perform notarial acts prohibited unreasonably refuse to commit such acts. In addition, the court relied on Art. 50 Law of Ukraine "On Notary" in which determined that the notarial act or refusal to its commission, the notarial act shall be appealed in court. According to the article. 55 Law of Ukraine "On Notary" deal of alienation and a pledge of property to be registered, certified, subject to the submission of documents confirming the ownership of alienable (or mortgage) assets. When the permit contract of alienation or mortgage of residential homes and other real estate verified the absence of a ban on alienation or seizure. Documents as provided by the claimant to confirm the fact of his ownership of a house that neither under arrest nor in the pledge is not, there are no other restrictions and prohibitions. Based on the foregoing, the court found that the failure of the notary in the contract of purchase and sale of the house is illegal.