Suchergebnisse

The article examines the role and functional importance of the lawyer's involvement in the notarial process, discusses the peculiarities of the lawyer's procedural activity in committing certain groups of notarial proceedings.

Based on the analysis of judicial and notarial practice, the authors consider the issues of registration of the powers of the lawyer who provides representation in the notarial process. The article concludes that it is necessary to eliminate ambiguous understanding of documentary confirmation of the representative's powers. The specifics of participation in the notarial process and the peculiarities of legal regulation for such participation are determined by the nature of procedural formalities in the sphere of the notarial process. The necessity of determining the lawyer's powers in the notarial process on the basis of a power of attorney issubstantiated.

The specifics of the lawyer's activity in the notarial process are proposed to be determined on the basis of two significant aspects: the legal status of the person represented by the lawyer and the nature, complexity, subjectivity of the notarial proceedings.

Since the notarial procedure involves the search for the most favorable, acceptable to the parties options for solving their legal situation, the use of various instruments of legal technique, the negative effects of the lawyer's participation in the dynamics of notarial proceedings areanalyzed.

Particular attention is paid to the functional component of the lawyer's participation in the notarial proceedings in terms of the stage of the notarial process. Based on the analysis of the case law and the practice of notary decrees on the refusal to perform a notarial act, it is concluded that most of the refusals were made on the grounds that could be eliminated or corrected by the applicant. The paper also stipulates the expediency of the lawyer's involvement in the notarial process for the purpose of increasing the efficiency of such a process. The efficiency of the lawyer's participation in the stage of preparation for the execution of the notary proceedings is determined in order to ensure the legal analysis of the documents as should be provided by the applicant for confirmation of one or another legal fact; legal analysis of the grounds for refusal of a notary in committing notarial proceedings; ways of adjusting the course of the notarial process, offering alternatives to solving the legal situation of theperson.

The article highlights the problematic aspects of the personal participation of a person on behalf of and in the name of whom the notarial proceedings are committed. Cases where such participation is mandatory are demonstrated. Based on the research, the authors of the article offer independent conclusions and judgments on the analyzed topics.

The article deals with the legal regulation for removal from the right to inheritance and law enforcement of the norm of Art. 1224 of the Civil Code of Ukraine. The study aims at developing the theoretical foundations of the application of this legal norm on the basis of analysis of legislation and case law. Such methods and approaches as systematic analysis and competent legal interpretation have been applied. The Civil Code of Ukraine regulates cases and removal of grounds for the right to inheritance. Article 1224 of the Civil Code of Ukraine is applied to heirs at law; it distinguishes cases and grounds for exclusion from the right to inheritance by various criteria. However, what is typical for the countries of the continental group, the law needs to be clarified, first of all at the level of law enforcement practice. The highest jurisdiction of Ukraine – the Supreme Court of Ukraine and the Supreme Court, made appropriate clarifications and interpretations of relevant legal norms at the general theoretical level (decision of the Plenum of the Supreme Court of Ukraine) and at the level of unification of general practice through expressing a legal position in specific cases. Such interpretation should be considered clearly and sufficiently for further processing. However, judicial interpretation is not competent to correct legislative inaccuracies. And the case law itself is characterized by a tautology and inconsistency, when the departure from the previously adopted legal position is disguised under the difference of legal and factual grounds of the claim. The results of such miscalculations include variability of methods of judicial protection for the heirs of the first turn (paragraph 2, part 3 of Article 1224 and part 5 of Article 1224 of the Civil Code of Ukraine) and procedural difficulties in proving claims – proving the testator's helplessness, address need assistance from the defendant, etc. In addition to legal uncertainty, which results in the poor functioning of institutions of exclusion from the right to inherit, this state of affairs creates grounds for abuse of rights. The authors propose measures to solve the problem, which can be divided into several groups. The first concerns amendments to Paragraph 2, Part 3 of Art. 1224 and Part 5 of Art. 1224 of the Civil Code of Ukraine: in terms of the subject composition, in particular, the permission of the heirs of other than the first turn, the order of inheritance, to sue on the basis of Paragraph 2 of part 3 of Article 1224 of the Civil Code of Ukraine. The second is aimed at intensifying the institution provided by Paragraph 2 of Part 3 of Article 1224 of the Civil Code of Ukraine, inter alia, due to the uniformity and consistency of judicial practice. The introduction of the principle of participation in inheritance by bona fide heirs as a reward for their care of the testator, and the relatively easy removal of the right to inherit those who did not show such care, will also contribute to the revival of law enforcement. Finally, the third group of measures is related to the promotion of inheritance through wills, which will limit the number of disputes in inheritance cases (mainly cases of invalidation of the will) and put an end to the issue of exclusion from the right to inherit.