Enforcement of public notary documents

1.    Introductory considerations

2.    Public notary document types

A public notary document is a document drawn up in writing and certified by a public notary, within their powers, in a legally stipulated form which produces legally stipulated effects (Trgovčević Prokić, 2007). If any one of the specified elements is missing in a document, it may not have the status of a public document, but may have the status of a private document. Private documents on which a public notary has certified signatures, which are in fact classified as notarial certificates and certifications, or the so-called solemnized documents. The aforesaid documents have the significance of condemnatory court and administrative decisions of settlement before courts or administrative authorities (Trgovčević Prokić, 2016). According to provision of article 118 of the Law on General Administrative Procedure, a public document is defined as a document issued in the stipulated form by a government authority within the scope of its powers, which attests to what is certified or established in it (The Law on General Administrative Procedure, 2016). Speaking of the manner of drawing up, or issuing, there are three categories of notarial acts as follows: processed public notary documents, notarial certificates and notarial certifications (Đurđević, 2005). In line with provision of article 6 of the Law on Public Notaries, the legislator stipulates five types of public notary documents as follows:

• 1)    Notarial acts - documents on legal transactions and statements drawn up by public notaries,

• 2)    Notarial minutes – minutes on the legal and other actions performed or witnessed by public notaries,

• 3)    Notarial certificates – certificates of facts witnessed by public notaries, 4) Notarial solemnization - non-public documents certified by public notaries, and

• 5)    Notarial certifications - non-public documents relating to which a public notary certified a signature, or certified the authenticity of a transcript, translation or excerpt.

3.    Public notary document as an enforceable document

Depending on the type of the documents listed above, the participation of public notaries in drawing them up varies. Namely, a public notary performs notarial duties by independently taking procedural actions within its subjectmatter competence, or by acting on a judicial decision. By provision of article 98 of the Law on Public Notaries, the legislator stipulated a restriction to entrusting duties to a public notary, specifying by paragraph 3 of the same article that a court shall not entrust a public notary with the duties for which the court itself is competent according to the rules of the Law governing enforcement and security interest. Šarkić and Počuča (2012) disagree with this attitude of the legislator, invoking examples from comparative legislations, and considering this provision unreasonably rigid. In addition, this could make the impression of notary-public and enforcement law being totally disconnected as the legislator specified that public notaries may not be entrusted with duties regulated by enforcement and security procedures. Besides those listed above, we also have foreign public notary documents, which under the condition of mutuality have the same legal effect as the public notary documents drawn up according to the Serbian Law on Public Notaries. However, foreign public notary documents may not have legal effects in the Republic of Serbia which they do not have according to the law of the country in line with which they are issued (article 8, paragraphs 1 and 2 of the Law on Public Notaries, 2011).

A public notary document has the effect of a public document only if issued in line with provisions of the Law on Public Notaries, i.e. if its drafting and issuance comply with all the essential conditions of form and legality stipulated by the law (article 7 of the Law on Public Notaries, 2011). The legislator’s attitude is supported by Stanivuk and Šarkić (2018, p. 110), who think it is correct and that the requirement relating to the existence of particular elements should be precisely and strictly formulated, in such a way that without them a public notary document may not produce any legal effects. The aforesaid is also of special importance for the fact that a public document,

LAW - theory and practice No. 1 / 2021 among other things, serves as a proof of what is stated in it, while the probative force and presumption of truthfulness of a public document are generally refutable. Namely, it is allowed to prove that the facts in a public document were established in an incorrect way, or that the document was incorrectly drawn up (article 238, paragraph 3 of the Civil Procedure Law, 2011). On the other hand, Šarkić and Počuča (2012, p. 31) state that article 7 of the Law on Public Notaries does not correspond to reality, being totally contrary to the formal legality principle, which is applied in enforcement proceedings, with regard to enforceable documents which are enforced following the rules of enforcement proceedings. More precisely, the executive court, or enforcement officers¹ are in no way competent to review an enforceable document. And the legal provision referred to above, i.e. article 7, paragraph 1 of the Law on Public Notaries, implies that an executive court, or enforcement officer, would be empowered to review an enforceable document and suspend its enforcement if they establish that in the drawing up of a public notary document the conditions were not met which are required for a document to have the force of a public or enforceable document. In the opinion of the authors named above, this provision ought to be reconsidered given that the enforceability of a public notary document may not be refuted according to provisions of the Law on Enforcement and Security Interest. The public document property is relevant as an enforceable document is in fact a public document based on which enforcement may be requested (Šarkić & Počuča, 2017). A public notary document is an enforceable or credible document when stipulated by the law (article 7, paragraph 2 of the Law on Public Notaries, 2011). Generally speaking, the legal system of the Republic of Serbia favoured the concept in which direct enforcement may be requested on the basis of the public notary documents which have the property of an enforceable document, which is additionally supported by provisions of the Law on Enforcement and Security Interest, which stipulates enforceable documents to be those public notary documents which, according to the law governing public notary issues, have the enforceable document property.

On the other hand Šarkić and Počuča (2012, p. 27) point out that not every document drawn up by a public notary is an enforceable document. Namely, public notaries draw up acts, minutes, perform solemnization, issue certificates and perform certifications, and only the acts specified in a legally stipulated form, provided they meet the legally stipulated conditions, may be enforceable documents. Along the same lines Stanivuk and Šarkić (2018, p. 116) advocate the view that notarial certifications should be accepted as authentic documents based on which enforcement procedures could be instituted directly. They assume that the legislator wanted to assign the enforceable property to the public notary documents in which the public notary takes an active part, i.e. draws up the documents, pays attention to their contents, instructs the parties as to the legal consequences of statements, and in which they include the explicit statement of the debtor, that in case of their liability coming due, they agree to enforcement. A public notary document has the enforceability property if it specifies the debtor’s obligations of acting, non-acting, giving and suffering, if the document identifies the creditor and the debtor, the enforcement subject, the scope and manner of enforcement, and the legal basis for issuing the public notary document, if it contains the debtor’s consent to enforcement, or to the fact that this document has the enforceability property, as well as that the debtor’s obligation has become due (Jakšić, 2006).

According to provision of article 85, paragraph 1 of the Law on Public Notaries, a notarial act is an enforceable document if it specifies a particular obligation of performance that the parties can agree on, and if it contains an explicit statement of the obligated individual that this document may, for the purpose of realization of any performance owed, be used after the obligation due date to directly implement enforcement proceedings. Furthermore, the legislator stipulated that if the court does not carry out the enforcement proceedings, the notarial act must also include other specific elements stipulated by law (article 85, paragraph 1 of the Law on Public Notaries, 2011).

• 3.1    The due date for the enforcement of public notary documents

  A public notary is obliged to, in compliance with the free will of the parties, specify in the enforceable document the claim due date, so that a court or public enforcement officer may carry out the enforcement. Claim maturity may also be proved by certification of signatures on a private document or by solemnization, because the proving of claim maturity is subject to the legal requirement of presentation of a public or certified document. Solemnization is the verification of the contents of a private document. This term is employed in the Law on Extra-judicial Procedure (2015), while the Law on Public Notaries uses the term “certification of a non-public document”, whereas other laws, such as the Law on Enforcement and Security Interest, employ the term “legally certified document”. Trgovčević Prokić finds that this terminology is not

  acceptable as it does not distinguish the documents in terms of their probative value (Trgovčević Prokić, 2017, p. 112).

• 3.2    The enforcement of a foreign public notary document

4.    Conclusion

With regard to foreign public notary documents, which are directly enforceable by a foreign law, they are also directly enforceable in the Republic of Serbia if they refer to rights which are not inconsistent with the Republic of Serbia legal system, and if they contain all the elements required for enforcement by the Republic of Serbia law (article 8, paragraph 4 of the Law on Public

The introduction of the public notary document as an enforceable document is a very useful and positive innovation in the Republic of Serbia legislation. Namely, the possibility of instituting enforcement proceedings on the basis of public notary documents which have the enforceable capacity without previously conducting any administrative or court proceedings before other government authorities represents a benefit for private interests, or interests of the parties. Particular protection is thus provided for creditors, who can, based on public notary documents, demand enforcement to be carried out. There is a certain relief for the debtor as well, who will not be under obligation to pay the expenses of civil procedure. Furthermore, this kind of documents significantly relieves the courts and administrative authorities of certain activities, saves resources and is very efficient as well. A characteristic of public notary documents with enforceable effect is that their drawing up and contents must be strictly complied with, because if a public notary document is not drawn up in the specified form, it may not produce legal effect. In drawing up a public notary document, the public notary must pay attention to all its elements, the interests of the parties, and the validity of the legal transaction. They must also accurately define the security instrument types, the methods of security realization in case of enforcement, as well as the security instrument object. On the other hand, the legislator also stipulated a restriction to entrusting duties to public notaries, being duties within the competence of the court, so that it is our opinion that public notaries, in view of the fact they perform their activities as impartial commissioners of the parties, guaranteeing the security of legal transactions, should also be assigned a role in enforcement proceedings.

Krstinić Dalibor

Doktor pravnih nauka, Docent, Pravni fakultet za privredu i pravosuđe, Univerzitet Privredna akademija u Novom Sadu, Srbija

Zarubica Sara

Magistar pravnih nauka, Doktorand na Pravnom fakultetu, Univerzitet u Beogradu, Srbija

IZVRŠENJE JAVNOBELEŽNIČKIH ISPRAVA

REZIME: Donošenjem Zakona o javnim beležnicima srpski zakonodavac uređuje pitanje poslovanja javnih beležnika, njihovih usluga i poslova. Sa-vremena javnobeležnička delatnost predstavlja specifičnu pravnu delatnost koja doprinosi povećanju pravne sigurnosti, rasterećenju sudova, što utiče i na efikasnije ostvarivanje prava građana, koji mogu lakše i brže da realizuju svoja građanska prava. Javni beležnik obavlja samostalno i nezavisno javnu službu i pri tome je i nezavisni poverenik stranke, a njegovo učešće prilikom sastavljanja isprava potvrđuje njihovu istinitost i sadržaj. Stoga javnobelež-ničke isprave zauzimaju relevantno mesto u savremenom pravnom prometu. Javnobeležničke isprave prema Zakonu o javnom beležništvu imaju svojstvo izvršnosti, pod određenim uslovima i na njihovoj bazi se može neposredno pokrenuti postupak izvršenja pred sudom kada za to postoje predviđeni uslo-vi, koji se smatra pozitivnim i veoma korisnim zakonskim rešenjem, zbog čega će u okviru rada autori ukazati na neke relevantne odrednice i specifičnosti koje se odnose na izvršenje javnobeležničkih isprava.

Ključne reči: javni beležnik, javnobeležnička isprava, javnobeležničiki zapis, izvršna isprava