1. IMPORTANCE OF NOTARIAL SERVICES
Notary services constitute a vitally important issue within notarial law, which must not only be taken into account in academic settings, but also in the application of said branch of law, therefore, we can affirm that if you have access to the This document shows the notarial services that notaries public can provide, that is, there are many services that are not taken into account, not even in the city of Lima, and not even in other major cities within the Latin notarial system, which We want to put on record, in order to encourage a more precise and thorough study of notarial law, which is not limited to the study of the rules, but goes further, that is, other sources of law must also be taken into account, within which we can cite the case of doctrine,which is made up of the comments published not only in Peruvian law, but also in foreign law.
Notarial services provide certainty and security and are efficient because they reduce the number or number of judicial processes (which are quite widespread and known in Peruvian law, which can be summarized in the following sentence: "litigate first, then later") and arbitration (which reaches consecration in the Peruvian political constitution of 1993, which is in force in Peruvian law and which replaced the Peruvian Political Constitution of 1979), for example in the case of public deed and transfer certificates of recordable movable property, and in the Latin notarial system they have a greater field of application, that is, in another notarial system, which we want to cite in this case, as the Anglo-Saxon notarial system has a smaller field of application.
2. LEGAL BASIS OF THE NOTARIAL QUALIFICATION
It is up to this headquarters to determine the legal basis of the notarial qualification in domestic law, in order to be able to know the applicable legal norm, for those who consider that the law prevails over other sources of law in the Roman-Germanic legal family, in this sense, We record in written and express form that the legal basis of the notarial qualification in Peruvian notarial law is article 5 of the Single Ordained Text of the Regulation of Legislative Decree No. 1049, Legislative Decree of Notaries, which has been approved by the Supreme Decree No. 010-2010-JUS.
Standard that should be a subject of study in a fairly broad way, to know its scope.
The cited standard establishes the following:
"Article 5.- Of the function
The notarizing and formalizing function of protocol and extra-protocol instruments performed by the notary implies the work of impartial guidance to users referred to in articles 27 and 99 of the Legislative Decree, of qualification of legality, of the granting of the act or contract that is requested; corresponding to it, the power to request the presentation of requirements, prior instruments or vouchers that prove compliance with tax obligations, which are necessary for the formalization of the act or contract. In no case, in his capacity as a notary is he empowered to issue resolutions.
The precautionary and preventive function that the notary fulfills implies that in the section of notarial public instruments, he complies with the regulations that govern each of the cases ”.
3. DEFINITION OF NOTARIAL SERVICES
In this headquarters it corresponds to define the notarial services, in order to determine the field of study of this research work, that is, the definition must be studied in all legal issues, regardless of whether or not it is a matter of notarial law, to which some authors know or denominate or study as notarial subjects, which constitutes a little-known meaning for laypeople in this branch of public law.
Notarial services can be defined as the function carried out by public notaries in the exercise of such quality, that is, if a public deed is granted before a notary public, it is clear that this act should be considered as a notarial service, and There are several public deeds we are dealing with notarial services, which are not only limited to public deeds, but are a whole variety of documents, and to know them, notarial law must be studied, on which the doctrine has published little research, And this not only occurs in Peruvian law, but also in foreign law.
In the previous paragraph we have cited the public deed, as a notarial service, therefore, we must specify that it is not the only one of the mentioned services, but that there are other notarial services, within which we can cite the case of the minutes of Vehicle transfers, which are also known as vehicle transfer acts, and in any case, as can be seen from the legislative decree of the notarial office, are of two types, such as protocol notarial instruments and extra-protocol notarial instruments, however, This classification, we consider that it is not suitable, but there are other services, which we consider to be quite important, but in Peruvian law it has deserved little importance, as is certainly the notarial qualification,subject that we hope will be added to the curriculum of the law schools and that apparently can only be studied as a prelude to public deed, with which we do not agree, but must exist as a prior act in every notarial document.
4. COMPARATIVE LAW
In some other countries the notarial qualification has already been a matter of study for more than ten years, therefore, in this subject or more properly legal institution we must make use of comparative law, as is certainly the reception, which is widely studied in comparative headquarters, which is not exactly the same as comparative law, but comparison is one of the various institutions of this legal discipline, which is not a branch of law, but within it there is comparative notarial law and Comparative registry law, which are some of the branches of comparative law, but they are not the only ones, but there are others, which are widely studied in comparative law.
5. CLASSES OF NOTARY SERVICES
It is important to write on this subject, as is certainly notary services, which are of two types, classes or varieties, which are the following:
1) Notarial qualification.
to. Notary entry qualification.
i. Prior notarial qualification for the granting of public deeds.
1. Positive.
2. Negative.
ii. Prior notarial qualification for the granting of wills.
1. Positive.
2. Negative.
iii. Prior notarial qualification for protests.
1. Positive.
2. Negative.
iv. Prior notarial qualification for registrable movable property transfer certificates.
1. Positive.
2. Negative.
v. Prior notarial qualification for the minutes of minutes and deeds of non-contentious procedures.
1. Positive.
2. Negative.
saw. Prior notarial qualification for the issuance of protocol instruments called the constitution of movable security and other affectations on movable property.
1. Positive.
2. Negative.
vii. Prior notarial qualification in other protocol records.
1. Positive.
2. Negative.
b. Notary exit qualification.
i. Notary output qualification for notarial public deed advertising.
1. Positive.
2. Negative.
ii. Notarial output qualification for notarial advertising of wills.
1. Positive.
2. Negative.
iii. Notarial exit qualification for notarial publicity of protests.
1. Positive.
2. Negative.
iv. Notarial qualification of exit for publicity of records of transfer of recordable movable property.
1. Positive.
2. Negative.
v. Notarial qualification of exit for notarial publicity of minutes and deeds of non-contentious procedures.
1. Positive.
2. Negative.
saw. Notarial qualification of exit for notarial publicity of protocol instruments denominated of constitution of movable guarantee and other affectations on movable property.
1. Positive.
2. Negative.
vii. Notary exit qualification for notarial advertising in other cases within the notarial protocol.
1. Positive.
2. Negative.
c. Other assumptions of notarial qualification:
i. Qualification of extra-protocol minutes.
1. Notarial qualification of authorization certificates for the travel of minors.
to. Positive. b. Negative.
2. Notarial qualification of acts of destruction of goods.
to. Positive. b. Negative.
3. Notarial qualification of delivery certificates. to. Positive.
b. Negative.
4. Notarial qualification of the minutes of meetings, directories, assemblies, committees, and other corporate actions.
to. Positive. b. Negative.
5. Notarial qualification of the minutes of bids and contests.
to. Positive. b. Negative.
6. Notarial qualification of inventory records; and auctions in accordance with Degistivo 674, Law for the Promotion of Private Investment of State Companies.
to. Positive. b. Negative.
7. Notarial qualification of the minutes of the raffle and award ceremony.
to. Positive. b. Negative.
8. Notarial qualification of identity verification certificates, for the purposes of providing digital certification services.
to. Positive. b. Negative.
9. Notarial qualification of certificates of transmission by electronic means of the expression of will of third parties.
to. Positive. b. Negative.
10. Notarial qualification of documents of verification of documents and electronic communications in general.
to. Positive. b. Negative.
ii. Qualification of certifications.
1. Notarial qualification for delivery of notarial letters.
to. Positive. b. Negative.
2. Notarial qualification for issuing certified copies.
to. Positive. b. Negative.
3. Notarial qualification for certification of signatures. to. Positive.
b. Negative.
4. Notarial qualification for certification of reproductions.
to. Positive. b. Negative.
5. Notarial qualification for certification of opening of books.
to. Positive. b. Negative.
6. Notarial qualification for verification of survival.
to. Positive. b. Negative.
7. Notarial qualification for domiciliary verification. to. Positive.
b. Negative.
8. Notarial qualification for other certifications that the law determines.
to. Positive. b. Negative.
2) Other notarial services.
to. Notarial reports to the Judiciary. i. Positive notarial rating.
ii. Negative notarial rating. b. Reports to the Public Ministry.
i. Positive notarial rating. ii. Negative notarial rating.
c. Reports to the National Police of Peru. i. Positive notarial rating.
ii. Negative notarial rating.
3) Issuance of transfers when the notarial qualification has been positive. to. Expedition of testimonies.
b. Issuance of notarial parts. c. Issuance of notarial ballots.
4) Granting of a notarial instrument when there has been a positive notarial rating.
to. Notarial protocol instrument.
b. Extra-protocol notarial instrument.
6. NOTARIAL QUALIFICATION
The notarial qualification is the value judgment carried out by public notaries, which will not always be or is positive, but is of two types, classes or varieties, which are the following:
1) Positive notarial rating.
2) Negative notarial rating.
This classification of the notarial qualification should be studied enough, however, no studies have been carried out on this important notarial subject, which is known by some as the subject of notarial law, among many other subjects of this important branch of law.
7. POSITIVE NOTARIAL QUALIFICATION
Now we will develop the positive notarial qualification, which constitutes an issue of vital importance in these times, because its study has been totally neglected, especially in Peruvian law.
When the notarial qualification is positive, it is charged for said notarial services and in part other notarial services are charged for the issuance of the document.
When there is a positive notarial qualification, the notary public provides or grants the notarial services of granting a notarial instrument of notarial advertising, for example when a person attends a notary's office with so that his minute is raised to a public deed, he must pay the notary fees for the Notarial qualification if you want it to be raised to a public deed and in the event that the notary decides that the minute is in conformity, additional notary fees must be paid for the granting of the notarial instrument.
This topic, as is certainly the positive notarial qualification, is too broad to be explained in its entirety in a work as small and superficial as the present one, which we leave on the record so that its importance is understood, a topic that in Peruvian law has reached little importance, as it has reached little development, which should motivate broader publications in the notarial systems of all countries.
8. NEGATIVE NOTARIAL QUALIFICATION
Having touched the positive notarial rating, now we will take care of developing the negative notarial rating, which constitute parallel issues and must be studied together in order to know the options when requesting notarial services, whose subject has been neglected in the Peruvian law, from a pragmatic or applicative point of view.
When the notarial qualification is negative, it is also charged, but only for the notarial qualification services, and not for the notarial services of granting the document or issuing it.
When there is a negative notarial qualification, the notary public does not grant, nor does it provide, the notarial services of granting the notarial instrument or notarial advertising. For example, if the minute is not compliant then the public deed is not provided or granted, but this only applies to your notarial office.
The negative notarial rating is a fairly broad topic, but at present we are only providing a few strokes, which confirms or demonstrates the fact that this topic is quite broad and this not only occurs in Latin notarial systems, but also in Latin American notarial systems. Anglo-Saxon notarial systems, which are notary systems different from each other, which have quite important differences, which must be studied, but the negative notarial qualification exists in both systems, and even in the other system, such as the administrative one, but the latter It is little known even by the most scholars and scholars of notarial law, but it is known by those who do comparative notarial law.
9. REGISTRY QUALIFICATION
In this case we must specify that the registry qualification is carried out by public registrars, therefore, the distinction detailed below is necessary.
10. REGISTRY QUALIFICATION AND NOTARIAL QUALIFICATION
It is necessary to study these two issues jointly in order to determine their main difference, which is that they are carried out by different officials, such as notaries public and public registrars, in this sense the former carry carry out the notarial qualification, while the second or last perform the registry qualification.
For example, in the case of the public deed, when the notarial qualification is positive, it is clear that it is granted before a public notary, and if the corresponding testimony or notarial part is presented before the registry offices, requesting its registration, carries out the registry qualification, which is being known in a broader way within Peruvian law.
11. OTHER NOTARY SERVICES
There are also other notarial services, which would be all the rest, within which we can cite the case of public deed, among many others. That is, not all notarial services are notarized, but there are others, which are widely known by notary publics, who are the most learned in notarial law and are different from registry agents.
12. NOTARY FEES
Notary fees must be paid in the notarial offices in all cases, whatever the notarial service that is provided or provided or executed, which results in that if the notarial rating is positive or if it is negative, it must also be cancel the notarial fees to the notary.
With which some lay persons in notarial law do not agree, therefore, law must be compared with the registry law, and in the latter the qualification rights (registry) differ and are different and different from the rights of registration.
13. LEGISLATIVE PROPOSAL
It is necessary that the notarial qualification in Peruvian law be widely regulated in a law or legislative decree, which is one of the functions of notaries public, not only in Peruvian law, but also in foreign law.
Some of the issues that must be regulated are the following:
1) Enumeration of the services provided by the notary public and the services it does not provide, which are listed so that there is no doubt.
2) Services provided by the notarial assistants of the notary public and the services they do not provide.
3) Services provided by the notarial advisers of the notary public and the services they do not provide.
4) Services provided by the notarial consultants of the notary public and the services they do not provide.
5) Definition of the notarial qualification.
6) Notary, civil, criminal and administrative responsibility of the notarial assistants of the notary public in the notarial qualification.
7) Notary, civil, criminal and administrative responsibility of the notary public's notary advisers in the notarial qualification.
8) Notary, civil, criminal and administrative responsibility of the notarial consultations of the notary public in the notarial qualification.
9) Matters that comprise the notarial qualification in each of the notarial documents.
10) Matters that do not include the notarial qualification in each of the notarial documents.
11) Notary principles applied to the notarial qualification.
12) Term of the notarial qualification in each of the notarial documents and types of document.
13) Extension of the term for notarial qualification.
14) Instances of the notarial qualification.
15) That the fees for the same are subject to supply and demand, that is, they are not subject to any notarial fee, or any other type, variety or class.
16) Characteristics of the notarial qualification.
17) Origin or not of the contentious-administrative route.
18) Notarial acts that are subject to charge of notarial qualification.
19) International notarial qualification.
20) Notarial qualification in electronic commerce.
21) Notarial qualification in electronic media that are not electronic commerce.
22) Telephone notarial qualification.
23) The elements of judgment that must be taken into account in the notarial qualification.
24) Positive notarial rating.
25) Negative notarial rating.
14. ECONOMIC ANALYSIS OF LAW
It is necessary to take into account the economic analysis of the law, within which incentives, disincentives, economic efficiency, economic inefficiency must be taken into account, among many other issues of the indicated legal discipline, which turns out to be very important in the study of law.
Notarial qualification is efficient when it is carried out correctly, because it encourages commercial traffic and the hiring of the notary public that practices it, by its clients, and the opposite occurs when the indicated qualification is practiced incorrectly. wrong, abusive, illegal, among many other characteristics.
15. ECONOMIC ANALYSIS OF THE LAW IN NEGATIVE NOTARIAL RATING
In this headquarters we will study the economic analysis in the negative notarial qualification, which constitutes an issue of vital importance in the study of notarial law and the economic analysis of law.
The negative notarial rating discourages the hiring of the notary public that practices it, for which its potential clients have preferred, prefer and / or will prefer to go to another notary public, and even worse if the indicated is excessive or as it is known in doctrine as a bottle peak.
That is, the notarial qualification must be adequate, correct, fair and exact, in such a way that clients are not scared away from notarial offices, but rather attract them.
However, a negative notarial rating provides a shield of protection to the notary, which few understand, but of course, that everything must be within justice and not within injustice.
16. ECONOMIC ANALYSIS OF THE LAW IN THE POSITIVE NOTARIAL QUALIFICATION
Now we will study the positive notarial qualification, which is very important within the notarial law and the economic analysis of law, and for this we take it into account.
The positive notarial rating at the beginning encourages the hiring of the notary by its clients, and if it is correct, there is no problem, but if it is poorly performed, that is, if it should have been negative and was positive, it is clear that it places the notary public in a series of problems that many end in processes that cause loss of time and money to the indicated officials, such as notaries public.
In many cases the latter are misled with false statements, forged instruments, forged identity documents, inadequate identification of the grantors, inadequate collaboration of notarial assistants, notarial advisors and notarial consultants, among many other problems, which constitutes an obstacle or obstacles that notaries public must know how to overcome, and the same occurs in civil procedure law, criminal procedure, labor procedure, administrative procedure, among other branches of judicial law, within which the subject matter is well developed, when It misleads the magistrates, but it is not developed in the notarial headquarters, which has been causing a series of problems for notaries,what we put on record in order to motivate other publications on such important economic - notarial issues.
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