On the legal basis of the "inspection" of sites by a notary
I decided to find out about the post about the new service of Novosibirsk notaries - inspection of sites in order to fix their contents for a certain point in time, but are there legal grounds for these actions? Painfully, it looks suspicious.
So, the basic law regulating the activity of notaries is the “Fundamentals of the legislation of the Russian Federation on the notariate”. The said law was adopted in 1993, but was subsequently edited many times.
Section 35 lists the actions that a notary can take. Of this list of interest is item 8 - which says that the notaries “provide evidence”. A little significant concept, isn't it?
Chapter 20 of the Basics, sheds some light on what it is:
“At the request of interested persons, the notary provides evidence necessary in the event of a case arising in court or an administrative body, if there is reason to believe that the presentation of evidence will subsequently become impossible or difficult.”
It seems to be all right here - the contents of the site can be changed at any time. True, there is also a reservation: “The notary does not provide evidence in the case, which at the time of the interested parties to the notary is in the proceedings of the court or administrative body.” That is, the judge himself is not a fool, he can see what is on the site and what is not. And if the judge is not confident in his skills (and he cannot be sure, since he is not a professional in this field), to attract a specialist. Which will consistently perform the actions that will be recorded in the protocol. Type, “Linux Slackware 10.2 operating system starts”, “login and password input window appears”, “login is entered as root, password is 123”, input prompt appears “root @ sud-drov: / home / sud #”, “enter lynx site.htm "and get the contents of the site, which says the plaintiff" ...
Even more interesting is Article 103 of the Principles, which speaks about the order of actions of a notary: “In order to secure evidence, a notary interrogates witnesses, examines written and physical evidence, and appoints an examination.”
A comma-separated listing does not make it possible to make an unambiguous conclusion - whether all these actions are mandatory or you can skip one of them. A hint of a clue to this issue is contained in the following - “When carrying out legal proceedings to secure evidence, the notary is guided by the relevant rules of the civil procedure legislation of the Russian Federation.”
The Civil Procedure Code also contains provisions regarding the provision of evidence by the court. The most significant for the subject of our research is Article 188 of the Code of Civil Procedure of the Russian Federation: “When necessary, when examining written or physical evidence, playing audio or video recordings, appointing an examination, examining witnesses, taking measures to provide evidence, the court may involve specialists to get advice, explanations and the provision of direct technical assistance (photographing, drawing up plans and schemes, sampling for examination, property valuation). ”
Is it possible to appoint an examination in order to decide on the provision of evidence? I think it is unlikely. Examination will be appointed by the general rules, after examining the evidence with the assistance of a specialist.
But here in what cases the court appoints the examination, it is defined specifically - in article 79 of the Code of Civil Procedure of the Russian Federation “If a case arises during the consideration of a case that requires special knowledge in various fields of science, technology, art, craft ...”.
Accordingly, since the notary is required to conduct an examination, he cannot state anything without it, since the technical organization of the site lies outside his (notary) field of knowledge.
Still, quite a funny moment, Article 103 of the Fundamentals of the Law on Notaries says that “the notary notifies the parties and interested persons about the time and place of evidence, but their non-appearance is not an obstacle to the taking of evidence.” But “parties” is a concept that I think is taking place when the case is already in court. It is then that there is a specific plaintiff and defendant. Up to this point there are only "interested persons". Well, this is purely legal hooks.
Summarizing the above, I think that:
The notary has the right to "examine" the sites, giving the appropriate conclusion.
Such a conclusion is credible only if the relevant expertise has been carried out and, together with the notary opinion, there is an expert opinion on the subject under investigation.
So what? I think in this vein the action of the notary is correct and logical.
So, the basic law regulating the activity of notaries is the “Fundamentals of the legislation of the Russian Federation on the notariate”. The said law was adopted in 1993, but was subsequently edited many times.
Section 35 lists the actions that a notary can take. Of this list of interest is item 8 - which says that the notaries “provide evidence”. A little significant concept, isn't it?
Chapter 20 of the Basics, sheds some light on what it is:
“At the request of interested persons, the notary provides evidence necessary in the event of a case arising in court or an administrative body, if there is reason to believe that the presentation of evidence will subsequently become impossible or difficult.”
It seems to be all right here - the contents of the site can be changed at any time. True, there is also a reservation: “The notary does not provide evidence in the case, which at the time of the interested parties to the notary is in the proceedings of the court or administrative body.” That is, the judge himself is not a fool, he can see what is on the site and what is not. And if the judge is not confident in his skills (and he cannot be sure, since he is not a professional in this field), to attract a specialist. Which will consistently perform the actions that will be recorded in the protocol. Type, “Linux Slackware 10.2 operating system starts”, “login and password input window appears”, “login is entered as root, password is 123”, input prompt appears “root @ sud-drov: / home / sud #”, “enter lynx site.htm "and get the contents of the site, which says the plaintiff" ...
Even more interesting is Article 103 of the Principles, which speaks about the order of actions of a notary: “In order to secure evidence, a notary interrogates witnesses, examines written and physical evidence, and appoints an examination.”
A comma-separated listing does not make it possible to make an unambiguous conclusion - whether all these actions are mandatory or you can skip one of them. A hint of a clue to this issue is contained in the following - “When carrying out legal proceedings to secure evidence, the notary is guided by the relevant rules of the civil procedure legislation of the Russian Federation.”
The Civil Procedure Code also contains provisions regarding the provision of evidence by the court. The most significant for the subject of our research is Article 188 of the Code of Civil Procedure of the Russian Federation: “When necessary, when examining written or physical evidence, playing audio or video recordings, appointing an examination, examining witnesses, taking measures to provide evidence, the court may involve specialists to get advice, explanations and the provision of direct technical assistance (photographing, drawing up plans and schemes, sampling for examination, property valuation). ”
Is it possible to appoint an examination in order to decide on the provision of evidence? I think it is unlikely. Examination will be appointed by the general rules, after examining the evidence with the assistance of a specialist.
But here in what cases the court appoints the examination, it is defined specifically - in article 79 of the Code of Civil Procedure of the Russian Federation “If a case arises during the consideration of a case that requires special knowledge in various fields of science, technology, art, craft ...”.
Accordingly, since the notary is required to conduct an examination, he cannot state anything without it, since the technical organization of the site lies outside his (notary) field of knowledge.
Still, quite a funny moment, Article 103 of the Fundamentals of the Law on Notaries says that “the notary notifies the parties and interested persons about the time and place of evidence, but their non-appearance is not an obstacle to the taking of evidence.” But “parties” is a concept that I think is taking place when the case is already in court. It is then that there is a specific plaintiff and defendant. Up to this point there are only "interested persons". Well, this is purely legal hooks.
Summarizing the above, I think that:
The notary has the right to "examine" the sites, giving the appropriate conclusion.
Such a conclusion is credible only if the relevant expertise has been carried out and, together with the notary opinion, there is an expert opinion on the subject under investigation.
So what? I think in this vein the action of the notary is correct and logical.
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Source: https://habr.com/ru/post/284440/
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