ORDER OF THE MINISTRY OF JUSTICE OF UKRAINE

of March 3, 2004 No. 20/5

About approval of the Instruction about procedure of notarial actions by notaries of Ukraine

For the purpose of reduction of regulatory legal acts of the Ministry of Justice of Ukraine in compliance to the current legislation of Ukraine I order:

1. Approve the Instruction about procedure for making of notarial actions by notaries of Ukraine (further - the Instruction) which is applied.

2. Nullify the order of the Ministry of Justice of Ukraine of 14.06.94 N18/5 "About Approval of the Instruction about Procedure of Notarial Actions by Notaries of Ukraine" registered in Ministry of Justice of Ukraine 07.07.94 for N152/361 (with changes and amendments).

3. To the director of the department of cases of civil status of citizens and notariate (Pavlova L. M.) send the Instruction to Head department of justice of the Ministry of Justice of Ukraine in the Autonomous Republic of Crimea, regional, Kiev and Sevastopol the municipal government of justice for application in work and bringing to permission of notaries.

4. To impose control of execution of this order on the deputy minister of justice of Ukraine Efimenko L. V. and director of the department of cases of civil status of citizens and notariate Pavlova L. M.

 

Approved by the Order of the Ministry of Justice of Ukraine of March 3, 2004 No. 20/5

The instruction about procedure of notarial actions by notaries of Ukraine

CHAPTER I. GENERAL PROVISIONS

1. Making of notarial actions in Ukraine is assigned to notaries who work in offices of notary public, the Public notarial Records Offices (further - notaries public) or are engaged in private notarial activities (daleechastny notaries).

2. According to the Law of Ukraine "About notariate" (further the Law), Civil and Family codes of Ukraine notaries make such notarial actions:

1) is certified by legal actions (agreements, wills, powers of attorney, etc.);

2) take measures concerning protection of heritable property;

3) grant certificates on the right to inheritance;

4) grant certificates on the property right to share in joint property of spouses in case of the death of one of spouses;

5) grant certificates on property acquisition from the public biddings (auctions);

6) grant certificates on property acquisition from the public biddings (auctions) if the public biddings (auctions) did not take place;

7) perform the belongings list of physical person, acknowledged it is unknown absent, or the location of which is unknown;

8) issue duplicates of notarial documents which are stored in cases of the notary;

9) are imposed and withdraw ban concerning alienation of real estate (property rights on real estate) and vehicles which are subject to state registration;

10) certify fidelity of copies (photocopies) of documents and statements from them;

11) certify authenticity of the signature on documents;

12) certify fidelity of transfer of documents from one language on another;

13) certify the fact that the physical person or legal entity is testamentary executor;

14) certify the fact that the physical person is live;

15) certify the fact of finding of physical person in certain place;

16) certify time of production of documents;

17) is transferred by statements of physical persons and legal entities to other physical persons and legal entities;

18) is accepted in the deposit by sums of money and securities;

19) is made by executive texts;

20) is made by protests of bills of exchange;

21) is made by ship's protests;

22) accept documents on storage.

Making of other notarial actions according to the law can be assigned to notaries.

3. Excluded

4. Notaries public in the Public notarial Records Offices issue duplicates and certify fidelity of copies and statements from documents which are stored in cases of these archives.

5. Texts of agreements, wills, powers of attorney, certificates, acts of ship's protests and protests of bills of exchange, transfers in case of the certificate by the notary of fidelity of transfer of the document from one language on another, statements on which the notary authenticity of the signature makes sure except for of statements electronically and those copies which remain in cases of the notary, and also duplicates of notarial documents, are stated on special forms of notarial documents from front and reverse side of these forms. The sample, the description, procedure for expenditure, storage, the address and reporting of special forms of notarial documents are established by the Cabinet of Ministers of Ukraine.

The specified notarial actions made without use of special forms of notarial documents are invalid.

Executive texts are made by notaries on documents which establish debt. If the executive text does not hold on the document establishing debt, then it shall be continued or stated completely on the special form of the notarial document attached to the document.

Making of other notarial actions is performed without use of special forms of notarial documents.

On copy which remains in cases of the notary the notary after the certifying text in the right bottom corner of leaf specifies series and numbers of the special forms of notarial documents used on notarial action. Series and number of the used form are specified also in the register for registration of notarial actions in the column "Content of notarial action. Place of making of notarial action. Number of the special form of the notarial document on which content of committed notarial action is stated. Date and number of verification of the special form of the notarial document".

For production of excerpts and references from Unified and state registers of information system of the Ministry of Justice of Ukraine special forms of documents of registers of information system of the Ministry of Justice of Ukraine are used (further - special forms). The list of excerpts and references from registers for which production special forms are used is established by the Ministry of Justice of Ukraine. The sample and the description of special forms, and also procedure for delivery, storage, accounting and reporting of their expenditure are established by the Ministry of Justice of Ukraine.

6. Notaries according to article 7 of the Law of Ukraine "About notariate" in the activities are guided by the laws of Ukraine, resolutions of the Verkhovna Rada of Ukraine, decrees and orders of the President of Ukraine, resolutions and orders of the Cabinet of Ministers of Ukraine, and in the territory of the Republic of Crimea, besides, the legislation of the Republic of Crimea; orders of the Ministry of Justice of Ukraine; regulations of the regional, Kiev and Sevastopol city public administrations.

When making notarial actions notaries in accordance with the established procedure and within the competence resolve the issues proceeding from rules of international law, and also the existing international treaties which consent to be bound is provided by the Verkhovna Rada of Ukraine.

7. Notaries shall keep notarial secret.

Certificates of committed notarial actions and the copy of the documents which are stored at the notary are issued by the notary only to physical persons and legal entities at the request of which or concerning which notarial actions were made. In case of the death of person or recognition by his dead such references are issued to heirs of the dead. In case of recognition of person it is unknown absent the guardian intended for protection of property is unknown absent, has the right to receive certificates of committed notarial actions if it is necessary for preserving property over which guardianship is established.

Certificates of committed notarial actions and other documents are provided by the notary within ten working days according to the reasonable written request of court, prosecutor's office, bodies of inquiry and pretrial investigation in connection with civil, economic, administrative or criminal cases, cases on administrative offenses which are in production of these bodies, with obligatory specifying of file number and appendix of official stamp of relevant organ.

Certificates of the amount of notarized agreements which are necessary only for establishment of compliance with law on the tax matters are provided by the notary within 10 working days according to the reasonable written request of bodies of the State Tax Service.

Certificates of availability of the constituted will and excerpt from the Heritable register, except for the testator, are issued only after the death of the testator.

Upon the demand of the Ministry of Justice of Ukraine, Head department of justice of the Ministry of Justice of Ukraine in the Autonomous Republic of Crimea, head departments of justice in areas, the cities of Kiev and Sevastopol for the purpose of regulation of the organization of notarial activities notaries issue the copies of documents and endurance signed by them from them, and also explanations in time, established by these bodies.

Withdrawal (dredging) of registers of the notarial actions and documents transferred to the notary to storage according to the procedure, provided by the Law of Ukraine "About notariate", and also notary's seals is not allowed. Such registers of notarial actions, documents or notary's seal can be provided to court according to the motivated court order only for survey and shall be returned by court immediately after survey.

8. Notaries shall perform the professional obligations according to the Law of Ukraine "About notariate" and the taken oath, to assist physical persons and legal entities in implementation of their rights and protection of legitimate interests, to explain the rights and obligations, to warn about effects of notarial actions which are made in order that legal lack of information could not damage, keep it in secret the data received by them in connection with making of notarial actions, to refuse making of notarial action in case of its discrepancy to the legislation of Ukraine or to the existing international treaties which consent to be bound it is provided by the Verkhovna Rada of Ukraine to message notarial clerical work and archive according to statutory rules, to make thrifty use of documents of notarial clerical work and archive, not to allow their damage or destruction, to provide documents, information and explanations upon the demand of the Ministry of Justice, to Head department of justice of the Ministry of Justice of Ukraine in the Autonomous Republic of Crimea, head departments of justice in areas, the cities of Kiev and Sevastopol when implementing of powers by them concerning control of the organization of activities and accomplishment by notaries of rules of notarial clerical work, constantly to increase the professional level, and in the cases established by the Law, to undergo advanced training and to carry out other obligations provided by this Law.

At the request of physical persons or legal entities which addressed for making of notarial actions notaries have the right to summon from the companies, organizations and the organizations of the data and the documents necessary for making of these notarial actions, to constitute drafts of transactions and statements, to make copies (photocopy) of documents and statements of them, and also to make explanations concerning making of notarial actions and consultation of legal nature to receive payment for provision of consultations of legal nature which are not connected with the made notarial actions, and for provision of additional information and technical services.

By the current legislation also other rights can be granted to the notary.

9. Language of notarial clerical work is determined according to article 15 of the Law of Ukraine "About notariate". If person who addressed for making of notarial action does not know clerical work language, texts of the processed documents shall be translated to it by the notary or the translator in written or oral form that is specified in zaveritelny text.

Person who is not knowing language in which the document is made is signed in that language which it knows.

CHAPTER II. GENERAL RULES OF MAKING OF NOTARIAL ACTIONS

10. Notarial actions can be made by any notary in all territory of Ukraine, except for restrictions in the right of making of the notarial actions established by the Law of Ukraine "About notariate" and other acts of the legislation of Ukraine.

11. Notarial actions are made in office of notary public, in the Public notarial Records Office, the room which is workplace (office) of the private notary. In some cases, when the physical person cannot be to the specified room and also when that is required by features of the certified legal action, such notarial actions can be made out of the specified rooms, but within the notarial district.

If notarial action is made out of premises of office of notary public, the Public notarial Records Office, the room which is workplace (office) of the private notary, in the certifying text and in the register for registration of notarial actions the place of making of notarial action (at home, in hospital, on the location of the legal entity, etc.) with indication of the address, and also the reasons for which notarial action was made out of the specified rooms is specified.

The notary has no right to perform notarial activities outside the notarial district, except for substitutions of other notaries in the cases provided by the Law.

12. Notarial actions are made after their payment, and also in the cases provided by the law after payment in the budget of tax on the income of physical persons (1), in day of giving to the notary of all necessary documents.

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(1) See the Law of Ukraine of 22.05.2003 N889-IV "About Tax on the Income of Physical Persons".

Making of notarial action can be postponed in case of need reclamations of additional data or documents from physical persons and legal entities or the direction of documents for examination and also if according to the law the notary make sure of absence at interested persons of objections against making of this action.

The term for which making of notarial action in these cases is postponed cannot exceed one month.

According to the reasonable written application of the interested person which took a legal action and based on the action for declaration of the interested person disputing the right or the fact about which certificate asks other interested person making of notarial action received from court of the message on receipt stops to permission of case by court.

Also other bases for adjournment or suspension of making of notarial actions can be established by the laws of Ukraine.

13. When making notarial actions notaries identify the personality of participants of the civil relations who personally addressed for making of notarial actions.

Identification is performed according to the passport or other document which makes impossible any doubts concerning the identity of the citizen (the passport of the citizen of Ukraine, the passport of the citizen of Ukraine for trip abroad, the diplomatic or service passport, the identity certificate of the seaman, the residence permit of the person living in Ukraine, but not being the citizen of Ukraine, the national passport of the foreigner or the document replacing it the certificate of the disabled person or participant of the Great Patriotic War, the certificate issued on place of employment of physical person).

The certificate of the driver, identity of the seaman, disabled person or participant of the Great Patriotic War, the certificate issued on place of employment of physical person cannot be used by the citizen of Ukraine for establishment of his personality during the conclusion of transactions.

The identity of the minor, up to 16 years, is determined according to the certificate of birth on condition of confirmation of parents (one of parents) that this person is their child.

If for physical person which owing to physical defect, disease cannot sign with own hand the transaction, the application or other document other physical person is signed, the notary identifies the personality of the citizen who is taking part in notarial action and the identity of the citizen who was signed for it.

Details of the document according to which the citizen's personality is identified register the notary in the register for registration of notarial actions.

The copy of the document based on which the personality is identified joins the notary copy of legal action (certificate) which remains in its cases.

14. In case of the certificate of legal action the amount of civil capacity to act of the physical persons taking part in it is determined.

Scoping of civil capacity to act of physical person is performed according to the passport or other documents, the stipulated in Article 43 Laws (except the certificate of the driver, the identity of the seaman, the disabled person or the participant of the Great Patriotic War, the certificate issued on place of employment of physical person) which exclude possibility of any doubts concerning amount of civil capacity to act of the physical person who addressed for making of notarial action. In case of need to the notary the certificate that person does not suffer from mental disturbance which can affect its capability is provided to realize the actions and (or) to manage them.

In case of availability of doubts concerning amount of civil capacity to act of physical person which addressed for making of notarial action the notary shall address to body of guardianship and care in the place of residence of the relevant physical person for factual determination of lack of guardianship or care over such physical person.

The notary in case of the certificate of legal actions, making of other notarial actions with the assistance of the authorized representative identifies his personality according to requirements of article 43 of the Law, and also checks amount of its powers.

To the notary the power of attorney or other document which confers powers to the representative is submitted. The validity of the power of attorney is checked by the notary by means of the Unified register of powers of attorney, except for powers of attorney which are constituted abroad with participation of the foreign authorities or which from them proceed, on condition of their legalization by authorized bodies. Without legalization such powers of attorney are accepted by notaries when it is stipulated by the legislation Ukraine, international treaties in which Ukraine takes part. By results of check of validity of the power of attorney (its duplicate) the excerpt from the Unified register of powers of attorney which is applied to the copy of legal action remaining in cases of the notary is made.

In case of availability of doubts of rather authorized representative, and also his civil capacity to act and legal capacity the notary has the right to make request to the relevant physical person which issued the power of attorney.

15. In case of the certificate of transactions and making of some other notarial actions in cases, stipulated by the legislation Ukraine (for example, in case of assurance of validity of the signature on the document), the notary verifies authenticity of signatures of participants of the transactions and other persons who addressed for making of notarial action.

16. Notarially certified transactions, and also statements and other documents are signed in the presence of the notary. If the transaction, the statement or other document it is signed in the absence of the notary, the citizen shall confirm personally that the document is signed by him.

If the physical person owing to physical defect or disease cannot sign with own hand the document, then according to its order at its presence and in the presence of the notary this document can sign other person. About the reasons for which the physical person who addressed for making of notarial action could not sign the document, it is specified in the certifying text. Legal action for person who cannot sign it cannot sign person, in advantage or with the participation of which it is certified.

If the physical person who addressed for making of notarial action does not own the letter or blind, the notary, besides, reads to it the text of the document about what on the document the corresponding mark is made. If blind person owns the letter, it signs the document.

The deaf, mute or deaf-and-dumb physical person which addressed for making of notarial action itself reads out the document and signs it. If such person in connection with disease or physical defect cannot sign the document, then when making notarial action there shall be person (signer) who can get on with deaf, mute or deaf-and-dumb person and confirm with the signature that content of legal action, the statement or other document corresponds to will of the participant of notarial action. The signature of person (signer) is put down after the text of legal action. From the specified person the document confirming its qualification is required.

Signing of legal action, the statement or other document is performed by the rules established by the paragraph the second this Item.

17. Excluded

18. Excluded

19. In case of the certificate of transactions of property nature are specified by the notary in their texts: for physical persons - registration number of accounting card of the taxpayer according to the State register of physical persons - taxpayers, code of the taxpayer according to the Unified state register of the companies and organizations of Ukraine or tax number. In confirmation of availability of identification number (code) the reference or (statement) which photocopy joins transaction copy which remains in cases of the notary is provided to the notary corresponding, certified by the authorized person.

If person because of the religious or other beliefs in the procedure established by the law refused adoption of identification number, the notary checks this fact according to its passport. The copy of the page of the passport with mark about availability at such person of the right to make any payments without identification number remains in cases of office of notary public or the private notary.

20. According to article 46 of the Law of Ukraine "About notariate" the notary has the right to demand from physical persons and legal entities of the data and the documents necessary for making of notarial actions. Such data and (or) documents shall be submitted in time, specified by the notary. However this term cannot exceed one month.

Failure to provide data or documents upon the demand of the notary is the basis for adjournment, suspension of notarial action or refusal in its making.

21. The notary has no right to make notarial actions on the name and on its own behalf, addressed to and on behalf of the spouse or the wife, their and relatives (parents, children, grandsons, the grandfather, the woman, brothers, sisters), and also addressed to and from employee name of this notary office and the workers consisting in employment relationships with the notary.

In the specified cases notarial actions are made by any other notaries or officials of any local government body within its competence.

22. Notaries do not take for making notarial actions documents which do not conform to requirements of the legislation or contain the data degrading honor, advantage and goodwill of physical person or goodwill of the legal entity which have erasures or additions, the crossed-out words or other not stipulated corrections, documents which texts are excluded to be read owing to damage, and also the documents written by pencil.

Dopiski, the crossed-out words or other corrections which are available in the documents directed for making of notarial actions shall be predosterezhena the signature official (the representative on that) persons and seal of organization, company or organization or person which issued the document. At the same time corrections shall be made so that it was possible to read both corrected, and mistakenly written, and then corrected or eliminated.

Documents in which it is impossible to read everything in them written in primary writing as, for example, the documents which are filled in with ink shabby, etc. are not accepted for making of notarial actions.

The torn documents and documents stated on two and more single sheets if sheets are not stitched by the method excluding possibility of their separation without integrity violation are not accepted, and sheets are not numbered and faces and seal of the legal entity who issued the document are not ratified official (authorized on that).

22-1. The notary verifies authenticity of each document sheet which is stated on special forms of notarial documents and moves for making of notarial actions, by means of the Unified register of special forms of notarial documents according to the procedure, provided by Procedure for maintaining the Unified register of special forms of notarial documents.

The information certificate of verification of the special form of the notarial document joins copy of the notarial document (the agreement, the power of attorney, the certificate and so forth) for which forms are checked, or is stored in the separate job specification if in cases of the notary there is no copy of the notarial document with which she can be acquainted.

Forms, data on which expenditure were entered in the Unified register just before making of notarial actions, reckon checked for making of the following with use of the documents stated on these forms (according to register numbers) notarial actions. (For example: statement, consent).

23. If documents which make sure, issued or certified, are stated on two and more single sheets, they shall be stitched or fastened by the method excluding possibility of their separation without violation of their integrity to putting down of notary's seal and specifying of number of the fastened sheets.

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