<<
>>

§ 2. Conceptual bases of reforming of a notariate in Russia in the conditions of modernisation in second half XIX centuries

The problem of conceptual bases of reforming of a notariate is among the debatable. So, V.A.Zalomov considers, that German experience of the organisation нотариата77 in this case has been borrowed.

Other scientists approve, that «three notarial legislations are put in the basis of our laws on a notariate: the Austrian position of 1854, Bavarian 1861 and … France 1803 with the latest to it replenishments. Novelty has put also absence of any empirical material about activity of notaries in Russia complicated legislative work on the organisation of Russian notariate. A material about activity of prereform notaries – to scoop there was no place, because notaries in such kind as they are created notar. Position of 1866 – not

Existed; therefore it was necessary to alter foreign samples according to requirements of Russian life and it to economic conditions »78. According to the third,« by Position working out about a notariate its authors also used West European and, in particular, the French corresponding legislation, however, unfortunately, is not too successful »79.

In this connection it is necessary to stop short at least, in our opinion, on the characteristic of the western notariate where it has arisen under

77 See: Zalomov V. A. Legal regulation of creation and notariate development in Dews - sijskoj empires (1866–1917): avtoref. dis. … kand. jurid. Sciences. M, 2012. With. 8.

78 Femelidi A.M.decree. soch. With. 5.

79 Development of Russian right in second half XIX – the XX-th century beginning / under the editorship of E.A.Skripileva. With. 117.

See also: notariate M.A.Institut's Debts in the Russian state: istoriko - legal research: avtoref. dis. … kand. jurid. Sciences. M, 2005.

Influence of the Roman notariate and, hence, much borrowed therefrom.

It is necessary to notice, that during first time in Germany and in France the notariate was the alien institute which did not have under self a firm historical basis. Possibly, therefore it could not develop and get stronger. For example, as it is marked in the literature, as the main reason followed disintegration of empire of Charles Velikogo of decline of a role and value of a notariate that it corresponded national to people views a little has served. So, according to traditions of the German people all major legal transactions should be made

Before the public assembly, which one had the right to them авторизацию80.

In this situation transfer of last government as contradicting people view could not become stronger strongly in the German legal practice, and eventually the notariate has given way to others institutsionalnym to the formations which are carrying out notarial activity. Therefore in IX century both in Germany, and in France there was a number pistsov, participating in public assemblies and drawing up statements for private persons. As a rule, copyists belonged to clergy.

Besides, notariate development braked occurrence of the so-called right печати81. It has entailed transfer of notarial actions to various officials including to representatives of clergy, has made existence of independent institute of a notariate, as a matter of fact, excessive.

As a result in the beginning of the Middle Ages both in Germany, and in France notaries are no more than the copyists who are in the service in various establishments or freely engaged in notarial activity like Roman tabellionov. «Such

80 See: Ljapidevsky N.P.decree. soch. With. 290–291.

81 "Right-wing presses" consisted that feudal lords ensealed those or other documents that attached the last absolute evidentiary significance and having submitted - ljalo development of institute of a notariate (see: in the same place. With. 221).

In the image, from history of development of this institute in Europe it is visible, that Charles Velikogo's notarial establishments have started up deep roots and have reached full development only in Italy where they have found the soil rather favorable for prepared by the Roman Law and customs of the Italian cities; in France and in Germany they have existed not for long and already soon after raspadenija empires have come to full decline; such position of a notariate in these countries proceeded all first half of Middle Ages when, at last, during the reception of the Roman Law by them has been apprehended together with the notarial right and notarial institute in that kind in which it existed in it

Time in Italy »82.

For the first time occurrence in Germany notaries of the Italian type is marked in XIV century, they acted in a role official pistsov at various offices. Originally their appointment was carried out by the daddy or the emperor as powers belonging to them, under the general rule, were considered valid everywhere. Later the right of such appointment has passed to the German emperors who realised it together with the daddy. With occurrence to Germany гофпфальцграфов83 (XIV century) the last also had been delegated this right, subsequently (in XV century) it became their exclusive privilege.

The male who has reached established in normative acts of age, successfully passed corresponding test spent gofpfaltsgrafom could be the notary; these requirements completely coincided with requirements for employment of the specified post under the Italian legislation. By the way to tell, the order of registration of notarial documents also differed nothing from Italian.

82 Explanatory note to the project of new edition of Position about a notarial part. In 2 ch. SPb., 1904. CH. 1. S XIV.

83 Pfaltsgraf – in France and medieval Germany originally queens - skoe the official with judicial functions, then – the head pfaltsgrafstva (district); gof – a court yard, court; it is put before the name of a post or a rank for uka - zanija accessories to a court yard.

Soon in Germany the crying need in more accurate and detailed regulation of notarial business has started to be felt. The charter of 1512 published by emperor Maksimilianom I though has not brought changes in an essence of institute of a notariate, marked itself a new stage in development of notarial business in Germany. The further perfection of notarial activity is connected, on the one hand, with acceptance of the laws ordering «offices at rejhs-chambers-geriht … and, with another, by the edition separate partikuljarnyh laws for different districts of the German empire … Near to development partikuljarnogo legislations one more phenomenon which had big enough influence on development of notarial institute in Germany during the newest time is noticed is the reception of the French right which were taking place in very many German states in the beginning of XIX century. So, e.g., the French notarial charter has been accepted in Baden, Angalt-Gessene, Luebeck, Oldenburg, Hanover etc. However, with the termination of Napoleonic wars and with restoration of the European world foreign laws have started to lose the little by little

Value and to give way to a former order »84.

Retsepirovannyj in XII century the Italian notariate in France it has undergone essential changes, in which result began to differ as actually from a notariate of Italy, and medieval Germany. In XII century fulfilment of official certificates has been combined with performance of the judicial functions realised both individually, and is joint. In this connection notarial and judicial certificates possessed uniform force and value, were executed directly, without additional civil legal proceedings.

The first reform in the French notariate was carried out by Louis IV who have founded in 1270 60 notaries, independent of the chairman of superior court and by that has begun branch of court from a notariate,

84 Explanatory note to the project of new edition of Position about a notarial part. CH. 1. S XVI.

«Disputable jurisdiction from indisputable» 85. The big influence on development of notarial business had Phillip Krasivogo86's order of 1304, which along with the procedural moments on registration of the notarial

Certificates the special order of appointment of notaries has been provided – they affirmed as this rank the king. In 1437, 1539 and 1541 have been accepted the royal ordinances confirming the order of 1304 In 1791 the law, accepted by the Constitutional meeting, has deprived of many persons of the right of appointment of notaries, has eliminated a heredity and possibility of acquisition of notarial posts, has consolidated all notaries under the general name «notaires publics», having limited their number.

On March, 16th, 1803 in France the novel which as some authors consider, including has laid down in a basis of the Russian Position about a notarial part of 1866 is accepted, therefore we will consider it подробнее87.

Under this law notaries began to be considered as the public

The officials appointed the president for life. The

85 In the same place. S XVII.

86 Phillip IV Beautiful (08.04 (06).1268 – 29.10.1314) – the king of France since 1285, king Navarry 1284–1305, columns of Champagne and Bri 1284–1305, son Phillip of III Courageous from dynasty Kapetingov.

87 notariate introduction imperial adviser Real Here is how proved: «On - by officials, called to consiliate the party and to resolve disputes, mirouspokoenie appeals to other officials who would be for the parties impartial council - nikami, and also objective editors of their wills:

– Explaining all completeness of the obligations, which parties in the contract accept on

Itself;

– Clearly stating these obligations;

– Giving to them character of the testified transaction and force definitive re -

shenija;

– Immortalising their memory and truly storing their contribution …

They … do not suppose occurrence of disputes between diligent people and deprive of mercenary people of hope of success in their aspiration to excite unfair dispute. These impartial advisers, these objective editors, this sort dobrovol - nyh judges who oblige neotmenno the parties in the contract, are notaries; it uchrezh - denie – a notariate ».

After introduction of institute of notariate Real established: «With inherent in it chuv - stvom realities, Bonaparte could not imagine alteration of the French right … without attraction of the competent lawyers, capable it to carry out in favour of the people» (In - ternet-resources).

They execute duties within district of that forum at which they consist. The number of notaries in each district is defined by the government and can be reduced only in the presence of the bases specified in the law.

For employment of a post of the notary it was necessary: to possess all rights of citizenship; to execute the requirement of the law on a compulsory military service; to reach age of 25 years; to have the certain experience of work, term and which features are in detail enough regulated in the law. The special certificate on morals and the abilities, given out by disciplinary chamber of district in which vacancy opened besides, is required. The pledge entering which size was defined by the separate normative act Was required.

After the statement of the candidate the president of republic it should take the oath. Only after that could be admitted to discharge of duties of the notary.

At each trial court the special disciplinary chamber consisting of 7–19 members, selected notaries from among the colleagues is formed. Their duty includes consideration and the permission of all doubts and the disputes arising in practice between separate notaries and their clients. The chamber was allocated with the disciplinary power concerning all notaries of the judicial circuit.

Notarial activity consisted in fulfilment of certificates to which the parties wished to give force of diplomas; in the certificate of time of their fulfilment; in maintenance of their safety; in delivery of corresponding extracts and copies. Notaries are obliged to assist any person who has addressed to them, have no right to refuse in notarial action fulfilment.

Procedure of registration of the certificate assumes presence of two notaries or the notary and two witnesses who should be citizens of France, competent and lives in the same administrative

District. Participation in fulfilment of certificates of relatives and relatives by law of the notary, and also employees of its chamber thus is forbidden.

Compensation to notaries is defined on mutual agreement with persons addressing to them or by definition of disciplinary chamber. It develops from: 1) compensations for certificate edition; 2) compensation for time spent for executing a process-verbal; 3) compensation for copy delivery, irrespective of compensation for drawing up of the original of the certificate; 4) the reimbursement for journey in case of fulfilment of the certificate out of the notarial chamber; 5) compensation of other small expenses of casual character. The kinds of compensation specified at numbers 2–4, were regulated by the special rate approved on February, 6th, 1807

All notarial acts are considered as the corresponding proof, come under to immediate execution in all territory of France the same as also judgements. Stay of their realisation is possible only under the court decision in connection with excitation of charge in forgery fulfilment.

«Thus, the most typical lines of the French notariate appear: 1) full branch of disputable jurisdiction from indisputable with granting of last in exclusive conducting a notariate; 2) the message to notarial acts of force of judgements so their enforcement can follow even without everyone posredstvujushchego participations in it of the judicial authority; 3) granting to notaries of the right to recommend itself the successor … involving bribability of notarial places, unlike all other posts of public character, and 4) appointment of notaries to a post for life, kakovoe the circumstance extremely provides them

Independence and independence »88.

88 Explanatory note to the project of new edition of Position about a notarial part. CH. 1. S XXII.

The legislation of the German states as it was already spoken, according to some scientists, also underlies Position about notarial activity of 1866 In this connection it is necessary at least abrisno to designate its maintenance.

On development of notarial institute in the German states had essential influence fundamental principles of the French notariate possessing certainly considerable advantages before the German legislation XVII and XVIII centuries under this influence in Germany the various acts constituted on the sample of the French law of 1803, and more or less successfully it retsepirovavshie have started to appear gradually. Acceptance of Prussian notarial charters from April, 25th, 1822 for the Rhine provinces and on July, 11th, 1845 for the other earths of Prussian kingdom became the First step in this direction. These charters in many respects borrowed positions of the French law and for the first time have equated notarial acts to the judicial.

On September, 29th, 1850 the notarial charter in Austria has been installed. Because of essential lacks this charter is replaced on May, 21st, 1855 by the new charter which also has kept principles on which it is based and the French notariate functions.

From time of disintegration of empire in Baden has started to operate having got tired from November, 3rd, 1806; in Virtemberge notarial business was regulated by laws from 1843 and 1849 In Hanover the special charter is entered on September, 18th, 1853; Braunschweig – on March, 19th, 1850

On November, 10th, 1861 in Bavaria it is accepted having got tired which ostensibly directly underlies Position about a notarial part of 1866

According to this Charter persons can be notaries only: 1) with success passed the examination established for service under the judiciary; 2) 2 years of the experience of work having not less at the notary. Last requirement did not extend on judges, public prosecutors, secretaries of vessels and lawyers.

Employment by lawyer activity was forbidden the notary, and also to perform any other paid work. Besides, it it was forbidden to do business (under or another's name, it is direct or oposredovanno). Such interdictions, as were specially allocated:

1) exchange gamble, trading, bank and broker employment, the account of bills;

2) «zavedyvanie affairs» a trading or industrial society or the financial enterprise;

3) the gamble consisting in purchase and resale of the real estate, obligations, hereditary and other rights;

4) the mediated or direct participation in business on which it makes notarial actions;

5) the turn of the capitals entrusted to him, at least and with a duty to pay percent;

6) acceptance under any pretext or the guarantee name under the transactions made with its assistance or it testified;

7) to make under the name of the transaction for others.

«The most typical difference of all these acts (the German. – a bus) from the French law it is necessary to consider that as them ustanovljalsja ordinary supervision of a notariate in the name of the forums, considerably belittling independent character of all institute; besides, a considerable role played as well a question on profitableness which meant to take from this institute owing to what small Landsherr´ы far reluctantly refused execution of functions of notaries favourable to them and quite often reserved it, absolutely avoiding the special

Notarial establishments »89. To the told it is necessary to add, that in

89 Explanatory note to the project of new edition of Position about a notarial part. CH. 1. S XXII.

Germany distinction between so-called disputable and indisputable jurisdiction has not been spent. In this connection in many respects notariate activity has appeared competing to court activity.

The specified situation has been eliminated by an adoption of law from May, 17th, 1898 about indisputable jurisdiction and the law from the September, 21st, 1899 which has consolidated notarial establishments of all Prussia in one institute which activity was regulated by uniform norms.

According to the first law which on January, 1st, 1900 has become effective in territory of all empire, notarial actions were made both notaries, and the judge individually, including vessels of the first (lowest) link. The notarial act was carried out by the notary in the presence of counterparts and witnesses (the last were obligatory not always). In this occasion the special process-verbal which after its announcement aloud subscribed all present was executed. On request of the parties from this report the special testified extract stood out.

To judicial or to the signature notarial certification it was made two demands: it should be made or recognised in the presence of the notary or the judge. In this case the corresponding mark is put directly on the document below the signature.

At fulfilment and certification of certificates presence of witnesses, as a rule, is not required. Under the law they are involved only when one of participants of notarial action appears blind, deaf or mute. However, their replacement with the second notary or judicial pistsom was supposed.

It was legislatively forbidden to participate in taking formal note as the judge, the notary, the copyist or the witness: 1) participants of the certificate; 2) to their relatives; 3) to persons in which advantage the certificate is made.

«As to a question on force and value of notarial acts that is authorised in § 794–880 obshchegermanskogo the charter of civil legal proceedings in its new edition on May, 20th, 1898 which recognises,

What is the German notaries documents come under compulsory without posredstvujushchego judicial authority participations … and the court order … stands out the notary storing the given document; the same concerns and the documents made at participation vessels. However, neither the law on May, 17th, 1898, nor the civil code does not take away from the separate states of Germany the right of the edition of own notarial charters directed on more detailed regulation of notarial activity and in general on finding-out as rules of fulfilment and certification of notarial documents, and positions of notarial institute among other establishments

The government »90.

The law from September, 21st, 1899 in detail regulates the status of notaries in territory of Prussian kingdom. According to it the notary is appointed the Minister of Justice for life from among the persons who are meeting the requirements, to shown applicants for judicial office employment. To each notary the residence and district in which limits it can carry out notarial activity is defined. At the introduction into a post it takes the special oath and the sample of the signature represents to the chairman ландгерихта91.

Notaries are under the supervision of the Minister of Justice, the president

оберландгерихта92 And the president landgerihta which have the right to check all documentation provided notarial deloprizvodstvom.

Each notary should lead the special register where data about all documents given out to it and certifications were brought, and also the special book for the account of documents being stored and values.

90 Explanatory note to the project of new edition of Position about a notarial part. CH. 1. S XXV.

91 Landgeriht – court of the lowest step on criminal and to civil cases.

92 Oberlandgerih – the higher zemsky court.

Notaries receive compensation from the persons addressing to them for fulfilment of notarial actions, but the agreement between them was thus excluded; the rate of commission was defined under the special rate defined by the state chancellor and the Minister of Justice.

Thus, it is necessary to come to conclusion, that the German acts for a notariate «in many respects borrowed those main principles upon which the institute of the French notariate already almost within the whole century (as, e.g., ability of notarial documents to direct enforcement, lifelong character of a notarial post is based, etc.) and sharply differ from the last … absence of sharp border between disputable and indisputable jurisdiction, a consequence of that is submission of notaries to supervision of forums and granting of some notarial functions belonging by the French right by the last is exclusive one

To notaries »93.

The analysis of the Russian legislation on a notariate, data in the following chapter of work, visually testifies to an inaccuracy of the statement volume, that Position about a notarial part of 1866 completely is based upon foreign legal acts. Certainly, thus it is impossible to deny, that composers of Position have considered experience of other countries and, first of all, France and Germany, however to no small degree they were based on historical development of notarial business in Russia, the available acts directly connected with fulfilment of some civil-law transactions, etc. In particular, that many procedural moments which have developed in notarial business of Russia before acceptance of considered Position, in it have been kept (submission of notaries to exclusively court visually testifies to it, so-called book, instead of a legal order of registration of certificates,

93 Explanatory note to the project of new edition of Position about a notarial part. CH. 1. S XXVI.

Multigradualness of registration of transactions with the real estate, features of the organisation of notarial business in the Warsaw judicial circuit etc.).

* * *

Occurrence and development of notarial business as appears from the stated material, is completely caused by the processes occurring in a society, are in cause and effect dependence on the social and economic, political, ideological, religious and other circumstances dominating during a certain historical epoch in the concrete country. And irrespective of time of occurrence of a notariate, features of its institutsionalno-organizational forms which were taking place in the different countries, and of some other moments (for example, a procedure of notarial actions, a parity of notarial offices with courts of justice and police) it is determined by practically same reasons – civil circulation formation, necessity of a legal protection of a private property, maintenance with legal means of indisputability of property and other rights of participants of trading and other transactions.

At a certain stage of development of the country archaic forms of a notariate did not answer expansion and an intensification of trading business in Russia. The vulgar copyists and other persons who were drawing up a various sorts written statements, objectively could not provide legal support of more and more becoming complicated civil-law transactions directed on an establishment, change, the termination of the corresponding rights and duties according to will of the parties. In such situation the state has been forced to take measures to, first, to recognise notarial activity state-public, it is essential thus having limited activity of a so-called church notariate; secondly, legislatively to settle the most important public relations in considered sphere (for example,

To regulate kinds of notarial actions, forms of their realisation etc.). Notariate modernisation as a whole influenced and carried out reforms of machinery of state (for example, local authorities reorganisation according to reforms of 1539 the direct have affected a number of aspects of activity of notaries).

All lacks of the organisation of notarial business till second half XIX century – are objective reflexion of an inconsistent policy of the power in the organisation of government, creation of the is social-legal institutes which have been not caused by a life by objective causes, the special relation to the serf form of fulfilment of notarial actions etc.

The notariate constituted a part of the judiciary of the country. Therefore the reasons of its reforming most sharply shown already to the middle of XIX century, have been caused by the same circumstances, as actually vessels.

In the course of creation of a new notariate first of all Russia leant against the centuries-old experience of realisation notarial activity and on the legislation in sphere of the civil circulation, judicial charters etc. Certainly, foreign experience of activity of notarial offices, in particular Germany and France has been considered also.

<< | >>
A source: Afanaseva Elena Aleksandrovna. the NOTARIATE of RUSSIAN EMPIRE of the PERIOD of MODERNIZATION of the COUNTRY (the END XIX – the XX-th century BEGINNING): ISTORIKO-LEGAL RESEARCH. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2014. 2014

More on topic § 2. Conceptual bases of reforming of a notariate in Russia in the conditions of modernisation in second half XIX centuries:

  1. the Chapter I REFORMING of the NOTARIATE In Russia IN SECOND HALF XIX CENTURIES: is social-LEGAL CONDITIONALITY, CONCEPTUAL BASES
  2. the Chapter II INSTITUTSIONALNO-LEGAL TRANSFORMATIONS To SYSTEM of the NOTARIATE of Russia IN SECOND HALF XIX CENTURIES: REFORMS And COUNTERREFORMS
  3. development of conceptual bases of the maintenance of gymnasia formation in second half XIX centuries
  4. § 1. The is social-legal reasons of reforming of notarial activity in second half XIX centuries
  5. factors of formation and development of conceptual bases soyoderzhanija gymnasia formation in Russia of second half XIX - the XX-th century beginnings
  6. THE CHAPTER I. FORMATION AND DEVELOPMENT OF CONCEPTUAL BASES OF THE MAINTENANCE OF GYMNASIA FORMATION IN RUSSIA OF SECOND HALF XIX - THE XX-TH CENTURY BEGINNINGS.
  7. 3.1 Concepts of a violent origin of the state and the right in Russia in second half XIX centuries
  8. 1.1. Spiritism and parapsychology in Russia in second half XIX centuries and career Vsevoloda Soloveva
  9. MARKS NIKOLAY STEPANOVICH. Development of conceptual bases of the maintenance gymnasia obrazoyovanija in Russia of second half XIX - the XXI-st century beginnings. The dissertation on competition of a scientific degree of the candidate of pedagogical sciences. Tver - 2018, 2018
  10. 2.1. Legislative regulation zemelno-distributive otnosheyony in Russia (the beginning XVIII - first half XIX centuries).
  11. MARKOV Nikolay Stepanovich. DEVELOPMENT of CONCEPTUAL BASES of the MAINTENANCE of GYMNASIA FORMATION In Russia of SECOND HALF XIX - the XXI-st century BEGINNINGS. The dissertation author's abstract on competition of a scientific degree of the candidate of pedagogical sciences. Tver - 2018, 2018