Market relations and industry in the country are actively developing. Together with them, the number of civil transactions is growing. The parties do not always faithfully fulfill their obligations under the concluded agreements. This leads to the fact that victims go to court to protect their interests. But reviewing cases can take a long time. In this regard, it is advisable to recall such a concept as an executive inscription of a notary. This will be discussed in the next article.
General Provisions
This concept refers to one of the most controversial in the practice of notaries. The role of the executive inscription is to recover money or property of an unscrupulous debtor, if there is an indisputable civil law relationship without going to court. Thus, a document issued by a notary receives the legal force of an executive document by applying an appropriate inscription to it.
This tool provides legal protection to the creditor against an unscrupulous debtor. In this case, the executive inscription is drawn up if it becomes necessary to use someone else's money.
The main law that regulates the collection is the Law on Enforcement Proceedings No. 119-FZ. According to its provisions, the relevant document can be enforced within three years from the date of commission. But under certain circumstances, in cases stipulated by law, this period can be restored when the participants in the transaction appeal later than the stipulated time. The collection is carried out in the same manner as in the case of judicial decisions.
Legality
Some experts believe that Law No. 119- excluded the executive inscription from the list of executive papers, which is given in article 7 of the Law, since it does not contain the corresponding term. However, such a position is criticized and refuted by leading lawyers. The list has items 8 "Decisions of other bodies in cases established by federal law." Among the documents that fit this definition is the notarial executive inscription in view of the fact that this is directly stated in the Fundamentals of the legislation of the Russian Federation on notaries, as well as the Civil Code of the Russian Federation.
But in reality, bailiffs do not accept this document. They justify their decision by the fact that such inscriptions cannot be made by notaries, as they violate article 35 of the Constitution of the Russian Federation, according to which no one can lose property otherwise than by a court decision. This conclusion can hardly be called justified. Legally, extrajudicial collection of property or money has never been canceled.
In this situation, one should turn to the decisions of the Constitutional Court. For example, in 2006, in its Decision No. 150-O, this judicial authority reached the following conclusions:
- The execution by notaries of executive inscriptions in cases provided for by law on documents that confirm the indisputable nature of the presence of debt does not contradict the provisions of the main law of the country.
- Subjects retain the right to go to court to resolve the dispute. This is a guarantee of protecting the interests of both parties.
The Constitutional Court has repeatedly considered relevant cases. At the same time, all the requirements that the executive inscriptions of notaries be recognized as inappropriate were not satisfied. Therefore, it is incorrect to assert that the document in question is contrary to the provisions of Article 35 of the country's main law.
Legal basis
Executive inscription is carried out in accordance with Articles 89-94 of the “Fundamentals of Legislation on Notaries”. They correspond with subparagraph 8 of paragraph 1 of Article 7 of Law No. 119-FZ.
The most fundamental point in this case is that the notary is a body related to preventative justice. The notary certifies and testifies the indisputable legal facts in accordance with his status, and represents in his person the state.
When recovering funds on this basis, the debtor retains the right to protection. The collection is carried out according to the norms established by the enforcement proceedings. This allows him to use the right to defense, including judicial. Thus, the debtor has the right to challenge the executive inscription.
Taking into account the foregoing, it seems that the bailiffs should accept the relevant documents for execution unconditionally. An executive inscription, as an executive document, must be carried out according to the general rules of the law applicable to all executive documents.
Terms of Service
The main condition for the executive inscription specified in Article 91 of the “Fundamentals of Legislation on Notaries” is the indisputable nature of the presence of debt or other liability of the debtor. This should be confirmed by the submitted documents. If the agreement provides for the condition that all disputes arising are subject to resolution in the arbitration court, then it will not work to use the executive inscription. The reason for this lies in the fact that the condition of the indisputability of debt collection in this case will not be met.
Execution of executive inscriptions by notaries is possible on the basis of the List of documents approved by Decree of the Council of Ministers of the RSFSR No. 171, which dates back to 1976. This document has not lost its validity and is currently, however, needs to be finalized.
Application practice
Today, the executive inscription is widely used for non-repayment of the loan amount, which is secured by a pledge of property left at the pawnshop. This is stated in paragraph 5 of Article 358 of the Civil Code. The Ministry of Justice of the Russian Federation obliged to carry out these inscriptions of notaries through Letter No. 09-11-1924-96. The Civil Code of the Russian Federation also refers to the possibility of collecting debt on the basis of the document in question. This applies, for example, to a rental contract regarding rent.
It turns out a contradictory situation. On the one hand, the executive inscription is widely used as collateral in pawnshops. On the other hand, in relation to other cases, a refusal can be obtained on the basis of Article 35 of the Constitution.
There is an opinion that due to the exclusion of clause 2 of section 2 “Documents on which debtors and guarantors made late payments on loans” from the List mentioned above, the executive inscription on debts by banks cannot be applied. But this is not so. If the relevant contract is certified by a notary, the banking organization has the right to contact this specialist in order to recover the notary’s executive inscription in relation to the debtor who does not fulfill his obligations. Thus, notaries can very well do the corresponding inscription. And the allegation that it has become irrelevant is not justified. Indeed, it is said that the debtor, in respect of whom the executive inscription was applied, has the right to apply to the court.
Benefits
Penalties for executive inscriptions have several advantages compared to a court decision. First of all, it concerns saving time and effort. In this case, the debtor will not have the opportunity to hide or realize the existing property in order to avoid liability. There are also advantages over a court order. It lies in the fact that in the case of the latter, the consent of the debtor is required, while with regard to the executive inscription this is not necessary.
The amount of costs in this case is much lower than when considering a case in court. According to the Law “On state duty” No. 127-, the amount of the state duty for execution of an executive inscription is 0.5% of the amount that is collected from the debtor. Previously, it was 7%.
Consider the main points at which executive inscriptions are made.
The timing
The inscription in question is presented for enforcement in the following terms:
- If the claimant or debtor is an individual, then within 3 years.
- If the claimant and debtor are legal entities, then within 1 year.
If you miss this period for good reason, the period can be restored, in accordance with the norms of the procedural law.
Primary obligation
Notarial executive inscription can be made on the following documents:
- On agreements that are certified by a notary, establishing obligations of a monetary or property nature.
- On loan agreements, with the exception of those provided by a microfinance organization, if they indicate the availability of an appropriate opportunity.
- On housing loan agreements, as well as credit on the assignment of claims, if they indicate the availability of an appropriate opportunity.
- On other papers, the list of which is approved by the Government of the Russian Federation.
Documents for a notary
When contacting a notary public, the following documents should be prepared:
- The original document proving the fact that the debtor must pay the money.
- Statement of the claimant.
- Calculation of debt on monetary obligations.
- A copy of the notice of debt, which was sent to the debtor no less than 14 days, as well as a document confirming its receipt.
If the fulfillment of the obligation depends on the term or conditions, papers are provided that prove the fact of the onset of the relevant terms or the fulfillment of the conditions.
Conclusion
If enforcement writings are widely used, it will greatly relieve the courts of a large number of cases that are indisputable. This will positively affect the work of the judicial system and will increase the degree of legal protection for bona fide parties to the agreements.
Despite the reluctance to use the notary's executive inscriptions on the contracts of some individuals, they have not lost their relevance. Repeated appeals to the Constitutional Court are proof of this. Executive inscriptions are made on certain documents, in a timely manner and when providing the necessary package of papers to a notary. In this case, it is necessary to take into account the statutes of limitations applicable to them.