1. Duties of the notary
The legislative decree of the notary establishes in its article 13 that the notary must join the college of notaries within thirty (30) days of issuing the title, after oath or promise of honor, before the Board of Directors. At the request of the notary, said term may be extended for the same term.
This article has as its immediate national legislative antecedent article 13 of Decree Law 26002, which indicated that the notary must join the College of Notaries within thirty days of issuing the Title, after oath or promise of honor, before the Board of Directors. ”
Spanish Notary Law establishes in its article 15 that the Notaries, to enter the exercise of their office, will swear before the Audience of the territory obedience and fidelity to the King, keep the Constitution and the laws, and fulfill their position well and loyally.
Article 14 of the legislative decree of the notary regulates the security measures, establishing that the notary will register in the college of notaries his signature, heading, sign, stamps and other security measures that he deems appropriate or the college determines, and that the notary will use in the exercise of the function. It also indicates that the signature, to be registered, must offer a certain degree of difficulty. In its second paragraph, it also establishes that the notary is obliged to communicate any changes and update said information in the opportunity and manner established by the respective college of notaries. It also specifies that the notary schools must ensure the maximum standardization of the formats and means for the submission of information referred to in this paragraph.
Este artículo tiene como antecedente legislativo nacional inmediato al artículo 14 del decreto ley 26002, el cual señalaba que el notario registrará en el Colegio de Notarios su firma, rúbrica, signo, sellos y equipos de impresión que utilizará en el ejercicio de la función. Además señalaba que la firma, para ser registrada, deberá ofrecer un cierto grado de dificultad. Y el segundo párrafo precisaba que cualquier cambio deberá comunicarlo previamente el notario al Colegio de Notarios.
The Spanish notary law states in its article 19 that Notaries will authorize all public instruments with their signature, and with the heading and sign that they propose and be given when issuing exercise certificates. In the second paragraph it specifies that the heading and the sign may not change from now on, without Royal authorization. In addition, in the third paragraph it establishes that in each Audience there will be a book in which the Notaries put their signature, heading and sign after having sworn their place.
Article 15 regulates the start of the Notary Function, stating that the notary will start his function within thirty (30) days, following its incorporation, extendable at his request for the same time, for the same term.
Which has as an immediate national legislative antecedent to article 15 of decree law 26002, which is established in article article 15.- The notary will start his function within thirty days after its incorporation, extendable upon request, for the same term. ”
Spanish notary law does not have an article with which you can compare or make comparative law.
2. Obligations of the notary
The legislative decree of the Peruvian notary establishes the obligations of the notary in its article 16, specifying that he is obliged to:
a) Mandatory open your office in the district in which it has been located and maintain customer service no less than seven hours a day from Monday to Friday.
b) Attend your office, observing the indicated schedule, unless due to its function you have to fulfill it outside it.
c) Provide their professional services to as many people as they require, except for the exceptions indicated in the law, the regulations and the Code of Ethics.
d) Require the participants to present the national identity document - DNI - and the legally established documents for the identification of foreigners, as well as the documents required for the extension or authorization of notarial protocol and extra-protocol public instruments.
e) Keep professional secrecy.
f) Comply with this law and its regulations. Likewise, comply with the directives, resolutions, requirements, commissions and responsibilities assigned by the Council of Notaries and the college of notaries.
g) Accredit to their school a permanent training in accordance with the role it performs.
h) Have a minimum physical infrastructure that allows an optimal conservation of the protocol instruments and the notarial file, as well as an adequate provision of services.
i) Have a minimum technological infrastructure that allows interconnection with its college of notaries, computerization that facilitates the provision of notary services for national and international commercial exchange and secure electronic government.
j) Guide their professional and personal actions according to the principles of truthfulness, honorability, objectivity, impartiality, diligence, respect for the dignity of people's rights, the constitution and the laws.
k) Keep moderation in your oral or written interventions with the other members of the order and before the boards of directors of the colleges of notaries, the Council of Notaries, the Board of Deans of the Colleges of Notaries of Peru and the International Union of Notaries Latin.
l) Provide in an updated and permanent way, preferably by electronic means or by magnetic means, the data and information requested by your school and the Council of Notaries. Likewise, provide information that the different powers of the State may require and provided they are not prohibited by law.
m) Grant all the facilities that the law may provide to national and foreign investment in the exercise of their functions.
n) To fulfill the functions that correspond to him in case of assuming institutional managerial positions; and,
ñ) Accept and provide the facilities for inspection visits arranged by both your College of Notaries, the Court of Honor and the Council of Notaries in the corresponding notarial office.
This article has as its immediate national legislative antecedent article 16 of Decree Law 26002, which indicates that the notary is obliged to:
a) Mandatory open its office in the district in which it has been located and maintain customer service no less than seven hours a day from Monday to Friday;
b) Repealed
c) Provide their professional services to as many people as they require, except for the exceptions indicated in the Code of Ethics of the Peruvian Notary;
d) Charge professional fees in accordance with the tariff; (*)
(*) Confronting with Article 7 of Law No. 26741, published on 11-01-97
e) Keep professional secrecy; and,
f) Comply with the commissions and responsibilities assigned by the Council of Notaries and the College of Notaries pursuant to Law, statute or agreement. ”
In addition, article 16-A establishes that notaries are required to require those appearing to present the National Identity Document - DNI and the legally established documents for the identification of foreigners, as well as the documents required for the extension or authorization of instruments. Notary publics protocol and extra-protocol.
Which is an article incorporated by Article 2 of Law No. 28580, published on July 12, 2005.
3. Prohibitions to the notary
Article 17 of the legislative decree of the notary titled "Prohibitions to the Notary", establishing that the notary is prohibited:
a) Authorize public instruments in which rights are granted or obligations are imposed on him, his spouse, ascendants, descendants, or blood or related relatives within the fourth and second degree, respectively.
b) Authorize public instruments of legal entities in which he, his spouse, or the relatives indicated in the previous paragraph participate in the capital or patrimony, except in those cases of companies that are listed on the stock exchange; as well as those legal entities in which they have the quality of administrators, director, manager, proxies or any representation.
c) Be an administrator, director, manager, attorney-in-fact or have representation of legal persons under private or public law in which the State, regional or local governments have participation.
d) Carry out tasks or positions within the organization of public powers and national, regional or local government; with the exception of those for whom he has been elected through popular consultation or to exercise the position of minister and vice minister of State, in which cases he must request the corresponding license. You will also be able to teach part-time and carry out the tasks or positions granted in your capacity as a notary. Likewise, he may exercise the public positions of councilor and regional adviser without the need to request a license.
e) The practice of law, except in their own cause, of their spouse or relatives indicated in paragraph a) of this article.
f) Have more than one notary office.
g) To exercise the function outside the limits of the province for which it has been appointed, with the exception of the provisions of subsection k) of article 130 of this law and article 29 of Law No. 26662; and,
h) The use of advertising that contravenes the provisions of the Code of Ethics of the Peruvian notary.
i) The partial or total delegation of its functions.
The previous Peruvian notary law stated that the notary is prohibited:
a) Authorize public instruments in which rights are granted or obligations are imposed on him, his spouse, his ancestors, descendants and blood or related relatives within the fourth and second degree, respectively;
b) Authorize public instruments of legal entities in which he, his spouse, or the relatives indicated in the previous paragraph participate in the capital or patrimony, with the exception of public service companies; or have the quality of administrators, directors, managers, proxies or any representation;
c) Be an administrator, director, manager, attorney-in-fact or have representation of legal persons under public law or in which the State, Local or Regional Governments have participation;
d) Carry out tasks or positions within the organization of the Public Powers and the Central, Regional or Local Government; with the exception of those for which they have been elected through popular consultation; Ministers and Vice Ministers of State, teaching and those appointed in their capacity as notary;
e) The practice of law, except in their own cause, of their spouse or of the relatives indicated in subsection a);
f) Have more than one notary office; and,
g) Exercise the function outside the limits of the province for which it has been appointed.
This last article was modified by Article 1 of Law No. 28580, published on July 12, 2005, which establishes that the notary is prohibited:
a) Authorize public instruments in which rights are granted or obligations are imposed on him, his spouse, or his ancestors, descendants and blood or related relatives within the fourth and second degree, respectively;
b) Authorize public instruments of legal entities in which he, his spouse, or the relatives indicated in the previous paragraph participate in the capital or patrimony, with the exception of public service companies; or have the quality of administrators, directors, managers, proxies or any representation;
c) Be an administrator, director, manager, attorney-in-fact or have representation of legal persons under public law or in which the State, Local or Regional Governments have participation;
d) Carry out tasks or positions within the organization of the Public Powers and the Central, Regional or Local Government; with the exception of those for which he has been elected by popular consultation or to exercise the position of Minister and Vice Minister of State, in which cases he must request the corresponding license.
You will also be able to teach and carry out the tasks or the positions granted in your condition of notary. Likewise, he may exercise the public positions of councilor and regional adviser without the need to request a license.
e) The practice of law, except in their own cause, of their spouse or of the
relatives indicated in subsection a);
f) Have more than one notary office;
g) Exercise the function outside the limits of the province for which it has been appointed, with the exception of the provisions of subsection k) of article 130; and,
h) The partial or total delegation of its functions.
The law of the notary of Spain specifies in its article 16 that the exercise of the Notary is incompatible with any position that has attached jurisdiction, with any public employment that accrues salary or gratification of the general, provincial or municipal budgets, and with the charges that compel them to reside outside their home. In the second paragraph, he points out that, however, in towns that exceed 20,000 souls, they may admit, even outside their domicile, the positions of Deputies to the Cortes or provincial Deputies.
Article 22 establishes that no Notary Public may authorize contracts that contain a provision in their favor, or in which one of the grantors is a relative of theirs within the fourth civil degree or second degree of affinity.
In addition, article 28 indicates that the provisions in favor of relatives, within the previously prohibited degree, of which the instrument in which they were made, will not take effect.
On the other hand, article 29 indicates that the provisions of the preceding articles, relative to the shape of the instruments and the number and qualities of the witnesses, and the ability to acquire what is left or sent by the testator, are not applicable to wills, and other provisions mortis causa, in which the law or special laws of the case will govern.
Article 18 of the legislative decree of the notary is entitled "Prohibition to Assume Lawyer Functions", and establishes that the notary is prohibited from authorizing minutes, except in the case referred to in subsection e) of the preceding article; The authorization will be in charge of a lawyer, with express mention of his registration number. In its second paragraph it is pointed out that the notary, in his capacity as a lawyer, is not prohibited from authorizing appeals that the law and registry regulations issue in case of refusal of registration.
The previous Peruvian notary law stated in its article 18 that the notary is prohibited from authorizing minutes, except in the case referred to in subsection e) of the preceding article; The authorization will be in charge of a lawyer, with express mention of his registration number. And in its second paragraph it is established that the notary, in his capacity as a lawyer, is not prohibited from authorizing appeals that the law and registry regulations issue in the event of refusal of registration.
4. Rights of the notary
The legislative decree of the notary establishes in its article 19 the rights of the Notary, specifying that they are the rights of the notary:
a) Immobility in the exercise of its function.
b) Be incorporated in the list of their notarial office, with a remuneration no greater than double the highest paid worker, and the rights derived from the labor regime of private activity.
c) Enjoy vacations, sick leave, attendance at national or international competitions and duly justified reasons.
d) Refusing to extend public instruments contrary to the law, morality or good customs; when a personal or professional offense is caused and refrain from issuing transfers of authorized instruments when professional fees and expenses are not paid at the agreed time and manner.
e) The recognition and respect of the authorities for the important function that it fulfills in society, who should give priority to the facilities for the exercise of their function; and,
f) The access to the information that the entities of the public administration have and that are required for the adequate fulfillment of their function, except for the exceptions that the law indicates.
This norm has as its immediate national legislative antecedent article 19 of Decree Law 26002, which establishes that the rights of the notary are:
a) Immobility in the exercise of its function;
b) Enjoy vacations, sick leave, attendance at national or international competitions and duly justified reasons;
c) Refusing to authorize public instruments contrary to the law, morality or good customs; when personal or professional injury is caused or when professional fees and expenses are not covered at the time and in the manner established in the Tariff.
The Spanish notary law establishes in its article 45 that the Government, after hearing the Hearings, will present the corresponding bill to the Courts to establish the tariff that establishes the notary rights.
