In this opportunity we will take care of developing the notarial principles, which is a neglected subject, which has only attracted the attention of Peruvian notarial law a few years ago, that is, this subject was not studied before, which we leave on the record for further knowledge. comprehensive of this important topic.
Notarial principles are little studied, even by the most well-known notarialists, therefore, it is justified to investigate and publish on such an important notarial legal issue, therefore, we must specify that foreign notarial doctrine has dealt with studying this important notarial issue, which draws our attention, and that is why we wanted to dedicate these brief lines to it.
There is no legal norm in Peruvian law that expressly establishes them, which hinders our investigative work on the subject investigated in this headquarters, which we leave on the record to take into account that it is a subject underdeveloped in Peruvian law, unlike of other topics, that if they reach development, within which we can cite, the registry principles, procedural principles, tax principles, and there are also others, some of which are: registry systems, procedural systems and notarial systems, therefore, We can affirm that the themes reach different development, or in other words, they do not develop in the same way. And to better explain the issue, this not only occurs in notarial law, but also in other branches of law and legal disciplines, however,It is evident that the aforementioned branch of law has reached little development, and this not only occurs in Peruvian law, but also in foreign law, as well as within comparative law, that is, we are referring to comparative notarial law.
WHO SHOULD TAKE THESE PRINCIPLES INTO ACCOUNT
The principles studied must be taken into account not only by public notaries, but also by other people, even if they are officials or authorities of the public, private, or mixed sector, therefore, they must be taken into account and also respected by judges, public registrars, prosecutors, coercive executors, among many other authorities of the public sector, that is, it constitutes a subject of vital importance in the study of Peruvian notarial law.
Notarial principles cannot be set aside not even by court order, however, judges in Peruvian law do not know the first ones, and the same happens with the mandates of the prosecutors and the other classes of mandates, therefore, we can affirm that everyone should know these principles, which constitute a subject of vital importance in the study of notarial law.
Many people consider that the principles studied should only be known, studied and respected by notaries public, with which we do not agree, because the same should happen with other people and authorities, which constitutes an important guarantee of the systems notarial.
The judges cannot order the notaries public to set aside or in other words, they cannot order the notaries to not apply the notarial principles, which constitutes an important guarantee of notarial law, and in this order of ideas we must specify that this issue is studied in the doctrine with a name coined by it, which is: "notarial qualification of judicial documents", or "notarial qualification of judicial instruments", or "notarial qualification of court orders", or "qualification notarial of judicial mandates ”, and thus we can continue with the enumeration, however, we do not continue with it, because the notion or idea has been quite clear, however, it is a pending issue so that we can investigate it, especially in the doctrine and social reality,which are two of the sources of law, however, it would be important to study jurisprudence and enforceability on such an important subject of notarial law, but we have not had the opportunity to find them, especially in Peruvian law.
D EFINITION
Now we will provide a brief definition of the subject studied, as it is by the way the notarial principles, which will allow to know the present subject in a more precise way, since the definitions allow that the investigations are more precise, in this sense, it is justified to define the principles studied, such as notarial principles.
Notary principles are those that determine the actions of notaries, which must be respected by the latter, and in this sense, they make possible the development of notaries in a more adequate way, or to put it in other words, in a correct or precise, however, in the doctrine there are few definitions on such an important doctrinal subject.
Some notarialists argue that the principles studied are not the same in all cases, but vary according to the type of system being studied, therefore, they affirm that the Latin notary has different notarial principles from the notarial principles of the Anglo-Saxon notary and its similar of the administrative notary, which we leave evidence for a more precise and correct knowledge of the subject matter of study, as is certainly the notarial principles.
ITS DIFFERENCE WITH THE REGISTRY PRINCIPLES
It is convenient that in this headquarters the principles studied are differentiated from the registry principles, that is, this topic acquires considerable importance, therefore, we wanted to dedicate some lines to it, in order to know this topic in a broader, more precise, correct and adequate, to continue our research on such an important subject of notarial law, as is certainly notary principles.
The Notarial Principles are not the same as the registry principles, since the former determine the actions of notaries, unlike the latter, which determine the requirements for access to the registry, the form and effects of the registrations. In other words, the notarial principles are different from the registry principles, therefore, it is convenient for our purposes to distinguish these principles.
The former are studied in registry law, while the latter are studied in notarial law, therefore, they are studied in different branches of law or legal disciplines, which we want to specify expressly for a broader knowledge of the subject studied.
ENUMERATION
In this opportunity we will make an enumeration of the notarial principles, which will allow us to have a list of the indicated principles, so that later the principles studied can be developed and explained, but separately, which will allow us to know in a broader way these important issues of notarial law.
The notarial principles are impartiality, prayer, immediacy, interpretation, objectification, advice, reserve, and safeguard, among others.
PRINCIPLE OF IMPARTIALITY
The first notarial principle that we will study will be the principle of impartiality, which is little known within Peruvian notarial law, therefore, we will dedicate a few lines to it, and with this we hope to know a notarial principle that has merited few references in the different sources of the National notarial law, however, in foreign notarial law, several studies have been carried out, which have been received from the foreign notarial doctrine to Peruvian notarial law, which we leave on the record to be taken into account by comparatists. That is, comparative law studies or has within its field of study several institutions, one of them being the legal reception, which is little known by those who do not know comparative law, but is well known by comparatists,who are experienced in comparative law studies. Due to impartiality, notaries must act without favoring any of the parties involved in the different acts or documents held or drawn up before them, which is why for some writers we can speak of notaries as judges or magistrates, in this sense, we hear people speak of notarial judiciary, however, for other writers these statements are wrong, which in any case should be the subject of study by writers.In this sense, we hear about the notarial judiciary, however, for other writers these statements are wrong, which in any case should be the subject of study by writers.In this sense, we hear about the notarial judiciary, however, for other writers these statements are wrong, which in any case should be the subject of study by writers.
For some authors, notaries must be impartial, as should judges, arbitrators, conciliators, among others, unlike other people, such as defense attorneys and negotiators, among others.
ROGATION PRINCIPLE
Now we will study the notarial principle of prayer, which is quite similar to the registration principle of prayer, with some differences, for example the first is little known unlike the second that is well known, therefore, these principles mentioned or cited should be studied jointly. By request, notaries cannot intervene ex officio, but must do so only at the request of a party, just like public registrars, therefore, we can affirm that this principle is common to both characters or is common to both branches of law. public, which should be a subject of study at the time of studying law.
This notarial principle is enshrined in the legislative decree of the current Peruvian notary public, and the same happened with the previous Peruvian notarial law, which is abrogated, therefore, below we will review these important norms of Peruvian notarial law, which will also allow the history of this branch of law. In this vein we must specify that subsection c) of article 16 of the legislative decree of the notary public in force in Peruvian law lists the obligations of the Notary, specifying that the notary is obliged to provide his professional services to as many people as required, except those exceptions indicated in the law, regulations and the Code of Ethics. And subsection c) of article 16 of the previous rule that regulated notaries, such as the law of notaries,contained in Decree Law 26002, constitutes the immediate national legislative antecedent, which established that the notary is obliged to provide his professional services to as many people as required, except for the exceptions indicated in the Code of Ethics of the Peruvian Notary Public. That is to say, these legal norms cited have a quite similar content, since only the final part is different, in this order of ideas one refers to the law, the regulations and the Code of Ethics, while another only refers to the Code of Ethics of the Peruvian Notary Public, which we leave on the record for those who wish to do comparative law, on such an important subject of Peruvian notarial law.which established that the notary is obliged to provide his professional services to as many people as required, except for the exceptions indicated in the Code of Ethics of the Peruvian Notary Public. That is to say, these legal norms cited have a quite similar content, since only the final part is different, in this order of ideas one refers to the law, the regulations and the Code of Ethics, while another only refers to the Code of Ethics of the Peruvian Notary Public, which we leave on the record for those who wish to do comparative law, on such an important subject of Peruvian notarial law.which established that the notary is obliged to provide his professional services to as many people as required, except for the exceptions indicated in the Code of Ethics of the Peruvian Notary Public. That is to say, these legal norms cited have a quite similar content, since only the final part is different, in this order of ideas one refers to the law, the regulations and the Code of Ethics, while another only refers to the Code of Ethics of the Peruvian Notary Public, which we leave on the record for those who wish to do comparative law, on such an important subject of Peruvian notarial law.In this order of ideas, one refers to the law, the regulations and the Code of Ethics, while another only refers to the Code of Ethics of the Peruvian Notary Public, which we leave on the record for those who wish to do comparative law, on such an important subject of law. Peruvian notarial.In this order of ideas, one refers to the law, the regulations and the Code of Ethics, while another only refers to the Code of Ethics of the Peruvian Notary Public, which we leave on the record for those who wish to do comparative law, on such an important subject of law. Peruvian notarial.
PRINCIPLE OF IMMEDIATION
Having studied the notarial principle of prayer, we will now study the notarial principle of immediacy. Immediacy is a principle of notarial law by which notaries must have a direct relationship with their clients, for which they must assist them personally and not through employees or advisers, which would violate this principle, in that sense that Give faith or grant it is the notary public and not its workers. In Lima it has been noted that this notarial principle is not fulfilled, since there is no direct relationship between the notary public and his clients, but rather that the same exists between the latter with the notary's employees, and the latter is not an employee. But in many provincial cities, notaries personally attend to their clients or future clients,which motivates the latter to receive a better notarial service. This explanation or comment is necessary, because the notary does not record: "that the workers of his notary's office told him that a certain person granted this or that public deed", but the record turns out to be totally different, that is, it is verified: "That certain people signed a deed in front of the notary public", therefore, the notaries public are certifying legal facts or legal acts that are not recorded to them, but to the workers of their notaries, which deserves more extensive studies not only in notarial doctrine, which is one of the sources of notarial law, but also in notarial social reality, which is another of the sources of the same branch of law cited,And in this vein we must specify that although it is true that both are sources of notarial law, it is also true that there are other sources of notarial law, within which we can cite the case of notarial law, notarial jurisprudence, notarial deeds, Notarial principles, manifestation of will, among many others, that is, those cited constitute only some of the sources of notarial law, therefore, we must specify that there are also others which are little studied and little taken into account, even in the most respected doctrine.manifestation of will, among many others, that is, those cited constitute only some of the sources of notarial law, therefore, we must specify that there are also others which are little studied and little taken into account, even in the most respected doctrine.manifestation of will, among many others, that is, those cited constitute only some of the sources of notarial law, therefore, we must specify that there are also others which are little studied and little taken into account, even in the most respected doctrine.
INTERPRETATION PRINCIPLE
Now we will study the notarial principle of interpretation, which constitutes an important issue that is neglected in Peruvian notarial law. Interpretation is a notarial principle by which notaries public must interpret the documents presented to them, for example, they must interpret the minutes that are presented, so that if necessary, the necessary additional clause is drawn up, in this sense, it must clearly distinguish the sale and purchase of the transfer, since the second or last of those indicated is an effect of the first, which is little known by lawyers, and the same happens in the case of the exchange and transfer, donation and transfer, among other assumptions. It also applies so that the necessary instrument is drawn up before the notary.
Not only the law can be interpreted, but also other sources of law or parts of it, in this order of ideas it is clear and evident that the documents that are presented to the notary can be interpreted, in order to determine their real meaning and in this In this sense, we must specify that the interpretation has different methods, for example there are the literal, exegetical, deductive, inductive, synthetic, analytical, sociological, functionalist, comparative methods, that is, there is not only one method or way of interpreting notarial documents, but that there are several, which can give or provide different results, however, we have warned that notaries in Peruvian law do not have national publications on notarial law that allow them to use interpretation methods other than the literal method,which we leave evidence for a broader knowledge of notarial law, in any case it is not only interpreted in this branch of law, but in any branch of law and in any legal discipline, which are also known as disciplines of law. And to clarify the issue we must specify that it can be interpreted in public, private and mixed law, and notarial law is located in the first of those mentioned.and the notarial law is located in the first of those mentioned.and the notarial law is located in the first of those mentioned.
OBJECTIVATION PRINCIPLE
Having studied the notarial principle of interpretation and other notarial principles, this time we will develop the notarial principle of objectification. Objectification is a notarial principle by which public notaries must act objectively and not subjectively, in that sense, they must apply the rules that correspond in each case, such as the law of notaries, the Peruvian civil code of 1984, the civil procedural code, registration regulations, among other rules of the law of each country. Likewise, all other sources of law must apply, among which we can cite jurisprudence, enforcement, custom, doctrine, social reality, manifestation of will, general principles of law, specific principles of each branch of law, among others, that is, these they are not all,but we cite them because they are the best known and in any case for many authors, writers and columnists they would be considered the most important, that is, we must emphasize that they are not the only ones.
That is, this notarial principle establishes that the actions of notaries must be objective and not subjective, or in other words, notaries must be objective and must not be influenced by subjective tendencies.
This notarial principle is enshrined in subsection j) of article 16 of the legislative decree of the current Peruvian notary public, with the name of objectivity, and previously there was no regulation in Peruvian positive law, which we record in order to take into account that currently has legal support and protection in Peruvian law, and in this sense, no notary in Peruvian law can be subjective in their work as a notary, which has as a consequence that their clients when they wish to be served must take into account that these officials Private parties must always act objectively, which is constituted not only as a notarial principle, but also as a guarantee of the Peruvian notarial system.
ADVICE PRINCIPLE
Now we will develop the notarial principle of advice, the study of which cannot be set aside, that is, it constitutes an important notarial principle or principle of notarial law. By the notarial principle of advice, notaries public must advise their clients so that the corresponding notarial document is drawn up in each case, for example, in some cases it is necessary to use acts, and in other public deeds, in this sense, for a vehicular transfer it corresponds use a transfer certificate, but for a real estate sale a public deed, which suggests that the range of possibilities is quite limited, but this is an error, because notarial instruments are abundant, as can be seen in the legislative decree of the Peruvian notary,which has as its immediate national legislative antecedent the notarial law.
That is, according to this principle, notaries should only provide their notarial services, when the requested one constitutes the perfect and suitable notarial instrument for the case, therefore, if it is intended to sell a house, not by public deed, but by notarial deed it is It is evident that the notary should not provide his services, and something similar happens in the case that the notary is requested a public deed to sell a car, in which case the notary must explain that the notarial service requested or notarial instrument requested is different or different from the one to be used, therefore, we can affirm that notaries public should not act mechanically, but only when the notarial instrument requested is the one that corresponds and not another, which is widely known in Peruvian notarial law.
RESERVATION PRINCIPLE
Having already studied several notarial principles, we will now study the notarial reserve principle. Due to the notarial principle of reserve, the notary public cannot disclose the acts that are celebrated before him, since he must act with loyalty and good faith, consequently if two people agree to celebrate a sale, he cannot disclose this contract before it is It is celebrated so that another contractor can be found, that is, another seller or another buyer, however, after the notarial document is factioned, it is clear that it is governed by the law of the matter as it is in the Peruvian state the legislative decree of the notary public.
This notarial principle must be studied to understand that it is different from the publicity principle. The notarial principle of safeguard is applied before terminating the notarial instrument, and the principle of publicity is applied from the termination of the aforementioned instrument, therefore, they have different places of application. However, this issue has not been studied by the national doctrine, therefore, it is justified to receive foreign notarial doctrine to Peruvian notarial law.
It is necessary to review the national legislation that regulates this important issue, therefore, we must bear in mind that subsection e) of article 16 of the current Peruvian legislative decree establishes that the notary is obliged to keep professional secrecy, that is, notaries They are professionals and in this sense, they are grouped or, in other words or legal terms, they make up different notary colleges, which are located throughout the Peruvian State. That is, this legal norm is constituted as the legal basis or legal protection of the notarial principle of reserve in the current Peruvian positive law, which we leave evidence in order to motivate comparative law studies, and also to allow studies of the history of Peruvian law and especially of the history of Peruvian notarial law.
GUARDING PRINCIPLE
Now we will study the notarial principle of safeguard, which is applied to Peruvian law, but its name is little known, therefore, it is justified to investigate this important notarial principle. The receipt is a notarial principle by which the notary public must file the documents of his notarial protocol, in a safe place in such a way that it cannot be subject to theft or illicit appropriation, consequently he must ensure their permanence for the interested parties who wish to request documents related to them.
Some people consider that this problem is solved by hiring property insurance, but after having consulted authorized opinions on the matter, it is a problem that cannot be solved in notarial law, therefore, we propose that in the Notaries' Associations and in the Congress of the Republic committees are formed to study these important issues, which are strictly academic field, that is, they are not theoretical knowledge, but are applications, and therefore, we wanted to dedicate these brief lines.
Some consider that a fairly detailed procedure for the reproduction and reconstruction of the notarial file could be established, taking as a model its similar established in the single ordered text of the general regulation of public registries, that is, they argue that this part of the registry law could be received, to that there is a notarial right more in line with current needs, because current problems merit the creation of harmonious solutions that allow for adequate solutions that are known to all, therefore, it is necessary to reduce transaction costs, since costs have been reduced of information, which constitutes a widely studied topic in the economic analysis of law, which for some is a research method while for others it is a method of interpretation,and there is also a third criterion, by which it is a legal discipline, but it is clear that it does not constitute a branch of law.
Article 25 of the legislative decree of the current Peruvian notary public regulates the Public Protocol Instruments, indicating that public deeds, instruments and other acts that the notary incorporates into the notarial protocol are public protocol instruments; that he must keep and issue the transfers that the law determines. Which has as immediate national legislative antecedent to article 25 of the notarial law, which indicated that public deeds and other acts that the notary incorporate into the notarial protocol are public protocol instruments; what to keepand issue the transfers that the law determines. The Law of Notaries in Spain does not have an article with which it can be compared or made comparative law. Article 43 of the current legislative decree of the Peruvian notary public regulates the security of the Registers, specifying that the records and volumes of the notary's office cannot be extracted, except for reasons of force majeure or when required for the fulfillment of the function. And it also maintains that the exhibition, expertise, collation or other diligence by judicial order or the Public Ministry, will necessarily be carried out in the notary's office. The immediate national legislative antecedent is Article 43 of Decree Law 26002, which established that the records and volumes of the notary's office cannot be extracted,except for reasons of force majeure or when required for the performance of the function. It also specified that the exhibition, expertise, collation or other diligence by judicial order or the Public Ministry, will be carried out at the notary's office. Article 32 of the Law of Notaries of Spain indicates that neither the parent deed nor the protocol book may be extracted from the building in which they are guarded, not even by judicial decree or higher order, save for transfer to the corresponding file and in cases force majeure. It also establishes that, however, the parent deed against which sufficient evidence or merits appear to be considered the body of a crime may be broken down from the protocol, preceding the effect of the court that knows of it, and leaving in any case literal testimony of that,with the intervention of the Public Prosecutor. It also establishes that the Notaries will not allow to remove from their file any document that is in their custody by reason of their office, nor will they allow to examine it in whole or in part, as well as the protocol, not preceding a judicial decree, but to the parties interested parties with acquired right, their heirs or cause-holders. In the cases, however, determined by the laws, and by virtue of a judicial order, they will disclose in their files the protocol or protocols in order to extend the procedures that are agreed upon. We have cited these legal norms so that readers and researchers can do comparative law, and also to study the history of law and especially the history of Peruvian notarial law.Which constitute important legal disciplines that deserve to be taken into account and equally deserve to be studied, stating that they are not branches of law.
RATING PRINCIPLE
Having taken care of developing other notarial principles, we will develop the notarial qualification principle, which is a notarial principle, which establishes that notaries public do not grant notarial instruments automatically, but only do so when there is a prior positive notarial qualification, that is, the notarial qualification is of two types, classes or varieties that are the following: 1) positive notarial qualification, and 2) negative notarial qualification. Therefore, we must specify that only in the first case should the notarial instrument be granted or issued. If the notary begins to provide his services or grant the notarial instruments without qualifying, many problems are generated, all of which generates many legal processes, which increase or, in other words, increase transaction costs,due to the increase in the costs of signing contracts or constitution of guarantees. In this sense, notaries public are widely aware of the law applicable to notarial instruments, that is, not only legislation, therefore, they are able to determine the cases in which each class of qualification corresponds, which are the indicated ones. However, these officials must have the legislation coincide with the social reality, which has as a consequence that notaries should not constitute an obstacle to economic growth, but on the contrary, in this order of ideas they must use harmonious interpretations to combine the two sources of the cited law, and we also state that there are other sources of law,within which we can cite the case of jurisprudence and enforcement.
That is, the notarial qualification must be negative, only in cases where the notarial instrument cannot be granted and this statement is inspired by abundant presentations by the Former National Superintendent of Public Registries, Carlos CÁRDENAS QUIRÓS, on the registry qualification of which can be roughly concluded that a very strong or very intense registry ratingslows economic growth and threatens the market, which by changing what has to be changed is very similar to the notarial qualification, and even many registrars are of the criterion that the registry qualification is not a registry principle, that is, if we take this as valid affirmation, we can affirm that the notarial qualification would not be a notarial principle either, but a common characteristic that exists in all notarial systems, which varies in intensity and breadth in the different notarial systems, which are only three, and in them there are The Peruvian, Bolivian, Chilean, Argentine, Uruguayan, Paraguayan, Brazilian, Colombian, Venezuelan, Ecuadorian, Mexican, American, Cuban, Costa Rican, Spanish, Belgian, Swiss, Swedish, Dutch, German, French and Italian notary systems are located.among many other notarial systems, stating that of the aforementioned almost all are notarial systems that belong to the Latin notary, except the American notarial system, which belongs to the Anglo-Saxon notary, noting that this last notarial system and the Anglo-Saxon notarial system are the Notary systems are better known and are considered as opposites, and we must also specify that the administrative notarial system is little known and little studied, and even as far as we know few countries consecrate it in their legal system, apart from belonging to the civil legal family law or the common law legal family, among many other legal families, which belong to current law, which are the fruit or result of the constant evolution of law,among many other well-known topics.
ADVERTISING PRINCIPLE
Now we will develop the notarial principle of publicity, which constitutes a notarial principle of great importance in notarial law. Every notary in Peruvian law is obliged to allow access to the information that appears in his notarial file, which is materialized through transfers, which are: testimonies, parties and ballots, however, nothing prevents the indicated official issue certificates of notarial instruments. To understand this notarial principle, article 87 of the legislative decree of the notary public must be taken into account, which constitutes the special norm applicable to the notarial principle matter of study, which is little known in Peruvian notarial law and is also similar to the registry principle advertising, however, the latter has two varieties,as the principle of formal publicity and the principle of material publicity are, for this reason, we must specify that the last of the aforementioned varieties does not exist in notarial law, that is, although the notarial principle of publicity is very similar at the beginning of the advertising registry, they are not exactly the same, which is widely known by notarialists, but is ignored by other legal scholars, which does not cause much problem, but the problem is generated by some proceduralists and constitutionalists who consider having a specialty superior to the others, which has been generating many problems to the law and especially to Peruvian law, in this vein they have come to argue the opposite, that is,that the principle studied would be exactly the same as the publicity registration principle, therefore, we are of the criterion that must be disseminated that the cited principles are not exactly the same or have the same effects, because many people who are unaware of notarial law, consider that This principle in registry and notarial law is the same only by changing what has to be changed, that is, it would be as absurd as to hold that the procedural principle of estoppel would have the same effects in each and every branch of procedural law, which It is clearly wrong, however, as regards the notarial principle studied, it is wrongly considered that it is the same as the publicity registry principle, which is totally wrong and violates all Peruvian notarial law, however,Those who have legislative proposals or initiatives to modify the legislative decree of the notary public can present their draft bills, or bills, according to each case, to the Congress of the Republic, explaining the advantages of approving the aforementioned instruments.
That is, the notarial principle of publicity is different from the registry principle of publicity, and to understand the latter, registry law must be studied, but to know the first one must consult notarial law, which although it is true both are branches of law public that have a lot of relationship or closeness to each other, so it is true that they are not the same but they are different, since the first studies public registrars, among other topics, while the second studies notaries public and other additional topics.
One of the central issues of registry law is registration publicity, while in notarial law the central issue is the formalization of the will of the grantors, which although it is true some notarial instruments are registered, we must specify that the two branches of the Public law cited have or pursue different or different purposes, which is widely known by notarial and registry clerks, who are specialists in notarial and registry law, respectively, that is, we must specify that on some occasions these branches of law or disciplines laws are studied and developed jointly, but they are different, and they study and apply different principles, since in the first the notarial principles are studied and applied,while in the second the registry principles are studied and applied.
These brief differences mentioned have or generate considerable consequences, which not only occurs in academic settings, but also in practice, especially since the registry of public deeds constitutes a registry itself, and therefore, must be located within the general theory of the Registry law, but without prejudice to it, must be studied within the notarial law. That is, within the general theory of registry law, all existing registries must be studied and grouped together, and some that are outside the competence of registry offices, such as the registry of dogs, thoroughbred horses, public deeds, criminal record, the sole of taxpayers, among many others, that is, this issue has not been studied in Peruvian law, therefore,We recommend studying the Spanish registry doctrine, in which the mentioned or cited registries appear neatly grouped, which by the way, are outside the competence of the mentioned offices.
PRIORITY PRINCIPLE
Having developed some notarial principles, we now turn to the notarial principle of priority, which is quite similar to the registry principle of priority. The notarial principle of priority is of two classes, types or varieties, which are the following: notarial principle of preferential priority or by ranks, and notarial principle of exclusive priority. And with respect to both varieties of the notarial principle studied, some notarialists are of the criterion that each public notary's office must have an income book, which acts as a journal of registry law, however, these issues are little known by those who do not they dominate the notarial law. To clarify this issue, it has been noted that some notaries have implemented the cited book,But this does not happen in all notaries and it can be carried out mechanically or electronically, for which reason it is recommended to bring the referral in the first way, because the second way requires more resources and almost all public notaries in Peruvian law does not have the same. We must also specify that many consider that mechanical books are more difficult to adulterate, in any case, the notary public must sign this book at the end of the day and this must happen in all the notaries that carry the indicated one, we have also noticed that few notaries They carry the same, therefore, we recommend its use, and this not only in Peruvian law, but also in foreign law. However, many institutions use electronic media, therefore,We can affirm that both types of carrying the books can be considered as safe, but in the case of using the electronic medium, the sheets must be printed and signed on all pages to avoid adulterations, since this should not happen and these prints must be signed as well. that electronic media must be guarded in each public notary with the security measures established by the notary. But all this until the legal norms that expressly regulate this important book are approved, such as the notarial journal, which we hope will be regulated in the most appropriate way for the benefit of all, since in this way we will enjoy greater transparency in the Notary services.but in the case of using electronic support, the sheets must be printed and signed on all pages to avoid adulterations, since this should not happen and these signed prints as well as electronic supports must be kept in each public notary with the measures of security that the notary establishes. But all this until the legal norms that expressly regulate this important book are approved, such as the notarial journal, which we hope will be regulated in the most appropriate way for the benefit of all, since in this way we will enjoy greater transparency in the Notary services.but in the case of using electronic support, the sheets must be printed and signed on all pages to avoid adulterations, since this should not happen and these signed prints as well as electronic supports must be kept in each public notary with the measures of security that the notary establishes. But all this until the legal norms that expressly regulate this important book are approved, such as the notarial journal, which we hope will be regulated in the most appropriate way for the benefit of all, since in this way we will enjoy greater transparency in the Notary services.since this should not happen and these signed prints as well as the electronic media must be kept in each public notary with the security measures established by the notary. But all this until the legal norms that expressly regulate this important book are approved, such as the notarial journal, which we hope will be regulated in the most appropriate way for the benefit of all, since in this way we will enjoy greater transparency in the Notary services.since this should not happen and these signed prints as well as the electronic media must be kept in each public notary with the security measures established by the notary. But all this until the legal norms that expressly regulate this important book are approved, such as the notarial journal, which we hope will be regulated in the most appropriate way for the benefit of all, since in this way we will enjoy greater transparency in the Notary services.
In addition, we must specify that the notarial journal covers quite important issues, within which we can cite the case of the expiration of the notarial filing entry, and the procedural blackout in the notarial headquarters, and other results of the notarial qualification, which may positive or negative, therefore, only in the first case the notarial instrument is granted or the transfer is issued, but whatever the result of the notarial qualification, the notarial service has already been provided, therefore, it is appropriate to pay the fees professionals in all cases and something similar happens in the registry office, that is, something similar happens in the registry procedure of requesting registration, and there has been no problem so far,stating that for many years rules contained in legal norms or more properly registry regulations that establish it in this last procedure have been applied.
This notarial principle and especially the notarial journal or journal of notarial law, at first glance creates or originates many problems, which would be for notaries public, and for their clients, however, it has a great advantage, for which It avoids legal processes between different applicants for notarial instruments or incompatible transfers. Which we put on record so that it is borne in mind that notarial law constitutes a branch of law or legal discipline that covers highly specialized topics, which can only be understood by people who have the necessary studies and experience in notarial matters, to which the doctrine of notarial law knows them with a name or denomination, as is by the way the "notarialistas", which is a term widely known in the indicated branch of law, but little known in other branches of law. However, there are many lawyers dedicated to the study of other branches of law or legal disciplines, within which we can cite the case of registry law and civil law, among others, who consider that due to the fact of having advised on a deed public or even worse in a copy legalized by a notary, this gives them the quality of great connoisseurs and experts in notarial law, which generates a series of problems to notarial law and especially to true notarialists, because they dominate notary issues, that is, not only notarial legislation, but also other sources of notarial law,which is widely studied and known in the general theory of law or introduction to law and in the general theory of notarial law or introduction to notarial law. And even within all branches of law there are some specialists in specific issues, and this also occurs in notarial law, for example some notarialists are specialists in public deed, others in certified copies, and so on others in notarial competition processes, Notarial principles, among other specialties located in notarial law, therefore, this branch of law or legal discipline, like others, is quite broad, therefore, a fairly detailed study of the aforementioned is justified. In this sense,It is preferable to apply only issues that are fairly closely known and not issues unknown to legal operators, which has certain exceptions, for example when seriously consulting the sources of law or parts of law applicable to the subject matter of study or Of application, in this order of ideas some public notaries specialize with greater emphasis on some topics or notarial institutions, for example it may be in mortgages or in the incorporation of companies, among many options or possibilities, however, this topic has not been taken into account in Peruvian legislation, but if we study law firms, university professors, public registrars, prosecutors, judges, among others, there is no legal rule that requires those indicated to master the entire legal profession, or the entire chair,or all registry law, all public prosecutors, or all judicial law, but this is divided by specialties, for example there are civil judges, who have different fields of study than criminal, labor and family judges and this happens in all areas of law, but the opposite occurs in notarial legislation, because article 15 of the legislative decree of the notary public lists the obligations of the notary, stating in subsection c) that the notary is obliged to provide his professional services to as many people required, except…work and family and this occurs in all areas of law, but in notarial legislation the opposite occurs, because article 15 of the legislative decree of the notary public lists the obligations of the notary, stating in subsection c) that the notary is obliged to provide their professional services to as many people as required, except…work and family and this occurs in all areas of law, but in notarial legislation the opposite occurs, because article 15 of the legislative decree of the notary public lists the obligations of the notary, stating in subsection c) that the notary is obliged to provide their professional services to as many people as required, except…
PREFERRED PRIORITY PRINCIPLE
Now we will deal with the notarial principle of first priority. This notarial principle is applied in the case of mortgages and security interests, that is, in this case all notarial instruments can be granted, but they agree in a different order, which would be the order of entry. That is, it has similar effects as the similar principle of registration law, but they are applied in different locations. Based on this notarial principle, if there are two mortgages on the same real estate that are processed before the same notary, none excludes the others, but both are granted or processed, that is, in all cases the notarial instrument is granted or issued or transfer, but it has to end according to the order of arrival, which is the order of entry to the notary public. And the same happens in the case of the security interest,changing what needs to be changed. This notarial principle does not apply in the case of guarantees that fall on different assets, for example, if two minutes are entered on mortgage loans, or loans guaranteed with a security interest and mortgages or security interests, respectively, fall on different assets, then it does not affect not at all the notarial principle studied. And all this must be verified and controlled by the notary public in charge of the public notary in which the constitution of the credits with their guarantees is processed.respectively, they fall on different assets, then the notarial principle studied does not affect at all. And all this must be verified and controlled by the notary public in charge of the public notary in which the constitution of the credits with their guarantees is processed.respectively, they fall on different assets, then the notarial principle studied does not affect at all. And all this must be verified and controlled by the notary public in charge of the public notary in which the constitution of the credits with their guarantees is processed.
EXCLUSIVE PRIORITY PRINCIPLE
Having studied some notarial principles, now we will study the notary principle of exclusive priority, which is a type, variety or form of the priority principle, for this reason we want to dedicate some lines to the first, to know it within the current Peruvian notarial law. This notarial principle is applied in domain transfers and antichresis, mainly, and in these cases the first grant excludes the following ones. In other words, it has similar effects as the similar principle of registration law, but they are applied in different locations. For example, if the same public notary is requested to grant two public deeds of transfer for sale that fall on the same real estate, in this case only the one that was initially entered can finalize first, that is,the other transfers are not granted, unless the first one has a notarial mark, in which case the second transfer is granted and so on, that is, something similar has happened a long time ago in the registration procedure of application for registration, which is regulated and applied in the Peruvian registry law, which we record to facilitate comparative law studies between the registry law procedure and the notarial law procedure, which although it is true they have differences between them, it is also true that there is similarities between those indicated. The notarial principle of exclusive priority is quite similar to the registry principle of exclusive priority, therefore, we must specify that the first of the aforementioned is little known in Peruvian law,The opposite occurs with the second of those mentioned, therefore, we must consult registry law books to have a more precise and detailed knowledge of the notarial principle subject of study.
FUNDAMENTAL PRINCIPLES OF THE LATIN TYPE NOTARY SYSTEM
19.2. THE NOTARY AND THE NOTARY FUNCTION
The Notary is a legal professional, holder of a public function, appointed by the State to confer authenticity to the legal acts and deals contained in the documents he drafts, as well as to advise and advise those requesting his services.
The notarial function is a public function, so the Notary has the authority of the State. It is exercised impartially and independently, without being hierarchically situated among State officials.
The notarial function extends to all non-contentious legal activities, gives the user legal certainty, avoids possible litigation and conflicts, which can be resolved through the exercise of legal mediation and is an indispensable instrument for the administration of good justice.
19.3. NOTARY DOCUMENTS
Notarial documents, which may have the purpose of formalizing acts and businesses of all kinds, are those authorized by the Notary. Its authenticity includes authorship, signatures, date and content. They are kept by the Notary and classified in chronological order.
In the drafting of notarial documents, the Notary, who must act at all times in accordance with the Law, interprets the will of the parties and adapts it to legal requirements, attests to the identity and qualifies the capacity and legitimacy of the grantors in relation to the specific act or legal business they intend to carry out. It controls legality and must ensure that the will of the parties, which is expressed in its presence, has been freely declared. All of this is understood regardless of the medium in which the notarial document appears.
The Notary is solely responsible for the drafting of your documents. You are free to accept or reject any project or draft that is presented to you or to introduce in it, with the agreement of the parties, the modifications that you deem appropriate.
The grantors of a notarial document have the right to obtain copies of its original, which remains in the possession of the Notary. Authentic copies have the same value as the original. The Notary Public may also issue copies in favor of persons who, according to their national legislation, have a legitimate interest in knowing the content of the document.
Notarial documents have a double presumption of legality and accuracy of their content and can only be contradicted by judicial means. They are clothed with evidential and executive force.
Notarial action also extends to the legitimation of signatures of individuals placed on private documents, as well as the issuance of testimonies in accordance with the copies with their originals in all kinds of documents and any kind of activities provided for by their respective national legislation.
The notarial documents that respond to the principles set forth herein must be recognized in all States and produce in them the same evidential, executive and constitutive effects of rights and obligations as in their country of origin.
19.4. THE NOTARIAL ORGANIZATION
National law will determine the area of competence of each Notary Public as well as the number of Notaries, which must be sufficient to adequately ensure the service. The law will also determine the place of installation of each notarial study, guaranteeing an equitable distribution throughout the territory. national.
Notaries must belong to a collegiate body. A single body, composed exclusively of Notaries, will assume the representation of the Notaries of each country.
The law of each State will determine the conditions of access to the notarial profession and exercise of the notarial public function, establishing for this purpose the tests or examinations that are deemed appropriate, requiring in any case to the candidates the title of graduate or degree in Law and a high legal qualification.
19.5. NOTARIAL DEONTOLOGY
The Law will determine the disciplinary regime of Notaries, which will be under the permanent control of the public authority and the collegiate bodies.
The Notary is obliged to loyalty and integrity towards those who request his services, towards the State and towards his colleagues.
The Notary, according to the public nature of his function, is obliged to maintain professional secrecy.
The Notary is obliged to be impartial, although such impartiality is also expressed through the provision of adequate assistance to the party that is in a situation of inferiority with respect to the other, in order to obtain the necessary balance so that the contract is held on an equal footing.
The election of a Notary corresponds exclusively to the parties.
The Notary is obliged to respect the deontological rules of his profession both nationally and internationally.
- There are, among others, two registry systems, which are: 1) a registry system with a very strong or very intense rating, and 2) a registry system with a weak or weak rating. And this classification is also applicable to notarial law, in which there are two main notarial systems, which are the same as those indicated above, but changing what has to be changed, that is, they would be the following: 1) notarial system with very strong qualification or very intense, and 2) notarial system with a weak or weak rating. Economic growth is a subject little studied and little known in notarial law, but it is well studied and well known in economic law, which is very similar to the economic analysis of law, however, they are not the same, but both study not only legal issues,but also economic, that is to say, both combine economic legal issues. One of the indicators of the existence of economic growth constitutes the increase in per capita income, therefore, if there is higher per capita income it is evident that there is greater economic growth, however, these issues are little known by almost all lawyers, but if they are well known by jurists, who are the jurists with the highest hierarchy. Thebut they are well known by jurists, who are the jurists with the highest rank. Thebut they are well known by jurists, who are the jurists with the highest rank. Thevery strong or very strong registry ratingIt has been generating many judicial processes that should not have been started, that is, this university professor affirmed and maintained that public registrars should use interpretations that make registrations feasible (inscriptions, annotations and mentions), however, it has been noted that previously the courts Peruvian registry offices, which have been unified and that in this sense make up the registry court, absolve the degree in the registry processes that are submitted to their knowledge, but in a not very serious way, because they suspend and deny the registration a lot, which generates that in registration exists a rather peculiar reality by which, in the first instance it is required that almost all titles be registered, but in the second instance, which is the last registration instance, the opposite occurs,claiming that it is the last resort and that it is only about complex titles, that is, this problem has not been noticed by the writers, since almost all those indicated only write hiding behind quotes from other books, that is, they only write saying what that others said and published previously in papers and books already published, which has generated many problems in the registry office, which for the good of all does not exist in the notarial office, that is, there are many problems in the registry qualification, but it does not occur this in the notarial qualification. The Document was drawn up in three versions, which were the following: Spanish, Italian and German versions, which must be taken into account by specialists in legal translation, which constitutes an important legal discipline,in which some lawyers have specialized and this not only occurs in Peruvian law but also in foreign law. But now we are only referring to the legal translation of the notarial principles, which constitutes an issue of the notarial legal translation, which has not been studied within Peruvian law.
