Appointment of examination by a notary: actual problems of theory and practice (on the case materials)

Abstract

Through the prism of comparison with the rules of civil procedure, topical issues of appointment of an examination by a notary in order to provide evidence are considered. The problem of the scope of application of procedural legislation to notarial actions to provide evidence is revealed. Since the introduction of this notarial act in the 1930s, its legal regulation has not changed substantially. As before, the current legislative model provides for the direct application of procedural rules on the provision of evidence by the court, but does not specify which procedural rules should apply when providing evidence by a notary. Special attention is paid to the problems of the conditions for the appointment of an examination, challenging the appointment of an examination as a perfect notarial act. Possible contradictions that arise between interested parties during the appointment of an examination by a notary have been identified. An extended interpretation of the provisions of art. 103 Fundamentals of the Legislation of the Russian Federation on the notary, leads in practice to a statement of challenges to the notary, conflicts between the applicant and interested parties on the candidacy of an expert (expert institution), the wording of questions to the expert, ambiguities with the legal force of the notary’s decision on the appointment of an examination. Clarifications to the current legislation on the notary are proposed, based on the separation of legal regulation of notarial and judicial support of evidence, as well as the appointment of an examination by a notary as an independent notarial action to certify indisputable facts.

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