1. Definition of surveillance
As the first part of this work, we must define the term "surveillance", therefore, we must specify that the referred means for us or should be understood as supervision or that monitors or sanctions or supervises and in the cases established by law, it must be sanctioned the supervised or monitored.
Therefore, it implies a functional dependency through which the person being watched is subject to the one who watches, in this sense, it is a pejorative or derogatory legal term, therefore, this issue should be studied to know its real meaning.
2. Definition of the legal term "notarial surveillance"
As a second part, we will define the legal term that motivates the present, which we will carry out in order to become aware of the problems that the current regulation analyzed has generated, like the previous one, which is abrogated, that is, to legislate it is It requires making use of the legislative technique, which is or constitutes a type, variety or class of legal technique, which must be entrusted only to specialists, who are only some of the lawyers, that is, only they must carry out this process, and therefore, it cannot be carried out by a non-lawyer, and worse still, it cannot be carried out by a non-lawyer, because it generates many problems for the Peruvian state, as we will notice in the following paragraph, without the present being able to be classified as a critical work, but only descriptive of the existing reality in Peruvian law and a revision of part of the notarial legislation.
El término jurídico “vigilancia del notariado”, debe ser estudiado dentro del derecho notarial, en tal sentido, lo estudiaremos en la presente sede, y en este sentido, debemos precisar que es peyorativo, despectivo o impositivo que atenta contra los derechos humanos de los notarios públicos del derecho peruano, por lo tanto, amerita una revisión o estudio comparativo entre la normatividad actual con la abrogada, a efecto de hacer un seguimiento histórico, lo cual es conocido como historia del derecho, que consiste en aplicar el método histórico, el cual constituye un importante método, que se encuentra descuidado en el derecho peruano, lo cual dejamos constancia para que se realicen estudios y publicaciones con este enfoque.
We consider in the present headquarters, that the problem is the name by which the established legal supervision is called, and not the existence or not of the latter, which we do not study in the present headquarters, however, there are many ideas that we leave in the inkwell, which should be the subject of publications by specialists in the law of notarial liability and comparative law, in order to determine the trend in the latter. However, in Peruvian law there are no authors who have published books on comparative notarial law, which makes it difficult to investigate the proposed topic, which we leave on the record so that we are quite careful in the study of this topic, which is very important and for that reason, we wanted to dedicate some lines to it, however,We are not developing it, but we are only highlighting its importance, not only for Peruvian law, but also for foreign law, and among these, comparative law can also be done, which would be properly studies of international comparative law.
3. Definition of responsibility in the exercise of the function
The legislative decree of the notary public establishes in its article 144, that the notary has disciplinary administrative responsibility for the breach of this law, related and regulatory norms, statute and decisions issued by the Council of Notaries and the respective notaries' association.
This article has as immediate national legislative antecedent to article 144 of Decree Law 26002, which establishes that the notary is responsible for non-compliance with this law, regulatory or related norms, statute and decisions issued by the Council of Notaries and the respective College of Notaries..
4. Responsibilities
Article 145 of the legislative decree of the notary public specifies that the notary is responsible, civilly and criminally, for the damages that, through fraud or fault, cause to the parties or third parties in the exercise of the function.
In addition, its immediate national legislative antecedent is Article 145 of Decree Law 26002, which expressly stated that the notary is responsible, civilly and criminally, for the damages that, due to fraud or fault, caused to the parties or third parties in the exercise of the function.
These cited norms have the same content, therefore, information sources should be consulted in which the previous norm is commented or explained, which will allow comparative law to be carried out, and will also make it easier to study the history of law.
5. Autonomy of responsibility
The legislative decree of the Peruvian notary public establishes in its article 146, that the civil, administrative or criminal consequences of the responsibility of the notary are independent and are required in accordance with the provisions of their respective legislation.
In addition, we must specify that in decree law 26002 there is no article that can be studied or taken into account as its similar or its antecedent, therefore, we consider necessary a more detailed study of the subject, but in isolation in order to know in detail. expands the commented article, which can even motivate comparative law studies, in order to apply the legal institutions of the same.
We must also point out that the doctrine of the right of responsibility has come to establish that it is not possible to sanction twice or opportunities for the same facts, therefore, this norm sets aside the non bis in idem principle, which is found widely recognized in Peruvian law, therefore, a proofreader is necessary, in order to learn more about this subject.
6. Disciplinary competence
Article 147 of the legislative decree of the Peruvian notary public establishes that the discipline of the notary public is the competence of the Council of Notaries and the Court of Honor of the colleges of notaries. It also indicates that against the resolutions of the Court of Honor of the colleges of notaries, only an appeal is applicable. The resolutions of the Council of Notaries, exhaust the administrative route.
This norm has as its immediate national legislative antecedent Article 146, which indicated that the discipline of notaries is the competence of the Council of Notaries and the College of Notaries.
7. Process guarantees
Article 148 of the legislative decree of the notary public establishes the guarantees of the Process, indicating that in all disciplinary proceedings the right of defense of the notary will be guaranteed, as well as all the rights and guarantees inherent to due procedure, which includes the right to present their arguments, to offer and produce evidence and to obtain a reasoned and legal decision.
Decree Law 26002 stated in article 148 that in all disciplinary proceedings the right of defense of the notary will be guaranteed.
That is, the abrogated norm enshrined only the right of defense, while the current norm is broader since it also establishes the right to due procedure, and tries to define it, however, this right or principle is not such a brief topic, rather, it is broader, and important books have even been published on this subject, both in Peruvian law and in foreign law.
8. Disciplinary infractions
Article 149 of the legislative decree of the Peruvian notary, indicates that the following constitute administrative disciplinary offenses:
a) Conduct not consistent with the dignity and decorum of the position.
b) Committing a serious act that without being a crime detracts from the public concept.
c) Failure to comply with the duties and obligations of the notary established in this law, regulatory and / or related standards, Statute and Code of Ethics.
d) Failure to comply with the prohibitions contemplated in this law, regulatory and / or related standards, Statute and Code of Ethics.
e) Habitual drunkenness and / or repeated and unjustified use of hallucinogenic substances or dependent drugs.
f) The continuous breach of its civil, commercial and tax obligations.
g) Attacking physically and / or verbally, as well as disrespecting notaries, members of the board of directors, court of honor and / or Council of Notaries.
h) Offering gifts to attract customers; and,
i) Accepting or requesting extra fees or other benefits for carrying out irregular actions.
This article has as immediate national legislative antecedent to article 149 of Decree Law 26002, which specified that the following constitute offenses:
a) Habitual drunkenness;
b) The habitual and unjustified use of hallucinogenic substances;
c) Conduct not consistent with the dignity and decorum of the position;
d) The continuous breach of its civil and commercial obligations;
e) Offering gifts to attract customers;
f) Accepting or requesting extra fees or other benefits, for carrying out irregular actions;
g) The use of advertising that is not limited to the announcement of your name and address;
h) Failure to comply with the duties of the notary established in this law, regulatory or related norms and statute; and,
i) Failure to comply with the prohibitions contemplated in this Law;
9. Types of sanctions
Article 150 of the legislative decree of the notary public indicates that the sanctions that can be applied in the disciplinary procedure are:
a) Private warning.
b) Public reprimand.
c) Temporary suspension of the notary from the exercise of the function up to a maximum of one year.
d) Dismissal.
It also indicates that the sanctions will be applied without the need to follow the preceding priority, according to the severity of the damage to the public interest and / or the protected legal asset. Additionally, the existence or not of intentionality in the conduct of the offender, the repetition and / or continuity in the commission of the offense and / or the damage caused may be taken into account.
On the other hand, we must point out that the sanctions, depending on the seriousness of the offense and the notary's background, are the following:
a) Private warning;
b) Public reprimand;
e) Suspension from 1 to 30 days;
d) Suspension greater than 30 days to one year; and,
e) Dismissal.
10. From the beginning of the disciplinary process
Article 151 of the legislative decree of the notary public regulates the beginning of the Disciplinary Process, establishing that the opening of the disciplinary procedure corresponds to the Court of Honor of the College of Notaries by means of an ex officio resolution, either on its own initiative, at the request of the Board of Directors, of the Council of the Notary Public, or by complaint. It also points out that in the latter case, the Court of Honor will previously request a report from the questioned notary in order to discharge it within a maximum period of 10 business days and on its merit the Court of Honor will decide whether there is room to initiate a disciplinary process in a maximum period of 20 business days. In its second paragraph it establishes that the resolution that provides for the opening of disciplinary proceedings is unquestionable,and the Court of Honor must immediately send all the proceedings to the Prosecutor of the respective College in order for him to undertake the investigation of the alleged administrative disciplinary offense.
The Court of Honor referred to in this article 151 of Legislative Decree 1049, does not have legislative antecedents in Decree Law 26002, that is, it constitutes a novelty in Peruvian notarial positive law, therefore, this subject should be the subject of study.
11. Disciplinary process
Article 152 of the legislative decree of the notary public regulates the disciplinary process, stating that in the first instance, the disciplinary process will be developed within a maximum period of ninety (90) business days, the first forty (45) business days being for the investigation in charge of the Prosecutor, who must issue an opinion with the factual and legal reasoning of opinion for the acquittal or not of the accused and, if applicable, the sanction proposal, proceeding immediately to return all the proceedings to the Court of Honor for resolution. The second paragraph indicates that in the event that the Prosecutor has issued an opinion on the responsibility of the accused and the Court of Honor had ruled for the acquittal or lesser sanction than the proposal, the Prosecutor is obliged to file an appeal.The third paragraph establishes that in the second instance the term will not exceed one hundred and eighty (180) business days. The fourth paragraph establishes that the terms established for the disciplinary procedure do not expire, but their non-compliance generates responsibility for the competent authorities.
From Decree Law 26002 it must be taken into account that Article 151, which established that the private reprimand is a written warning to the notary for the fault committed by the Board of Directors of the College of Notaries. The second paragraph establishes that an appeal is made to the General Assembly of the College of Notaries.
Article 152 of the same rule states that the public reprimand is a written warning to the notary for the offense committed, formulated by the Board of Directors and approved by the Assembly of the College of Notaries. In its second paragraph it is established that an appeal is required before the Council of Notaries.
Article 153 indicates that the suspension is the temporary separation of the notary from the exercise of the function, imposed by the General Assembly of the College of Notaries. The second paragraph established that an appeal should be made before the Council of Notaries. The third paragraph indicated that it includes the closing of their records and the appointment of the notary who is in charge of the office. The fourth paragraph established that it prevents the notary from intervening in acts derived from his position, including those of a union nature.
Furthermore, article 154 established that dismissal is the definitive separation of the notary from the exercise of the function, imposed by the General Assembly of the College of Notaries, adopted with the concurrence of no less than three fifths of its working members. The second paragraph establishes that an appeal is required before the Council of Notaries.
On the other hand, article 155, indicates that the impugnative appeals are filed before the body that applied the sanction, within a period of fifteen days from the notification of the resolution, which will raise it to the corresponding higher instance. And the second paragraph indicated that the denial of the appeal may be appealed in complaint to the hierarchical superior.
Article 156 stated that the disciplinary process will take place within a maximum period of sixty working days, counted from the date on which the Board of Directors of the College of Notaries notifies the initiation of the process to the questioned notary.
Article 157, established that the first thirty days of the term will be dedicated to the investigation of the alleged offense, which will be carried out by the Prosecutor, who must issue his opinion within that term.
And article 158 stated that the remaining thirty days of the term will be dedicated to the adoption of the corresponding resolution by the Board of Directors or the General Assembly, as the case may be.
12. Precautionary measure
Article 153 of the legislative decree of the notary public regulates the Precautionary measure, establishing that by means of a reasoned decision, ex officio or at the request of the respective college or the Council of Notaries, the Court of Honor of the colleges of notaries at the beginning of the disciplinary procedure may provide as a measure prevent the suspension of the prosecuted notary if there are reasonable indications of the commission of disciplinary administrative infraction and given the seriousness of the irregular conduct, the imposition of the sanction of dismissal is foreseen. Said decision will be communicated to the board of directors of the respective college, in order to proceed to the closing of the records and the appointment of the notary who will be in charge of the office for the duration of the suspension.In no case may the precautionary measure exceed the maximum term established by this law for the development of the disciplinary procedure, under the responsibility of the competent authority. The second paragraph establishes that the appeal does not suspend the precautionary measure.
This article does not have legislative antecedents in Decree Law 26002 and the same happens with respect to the Spanish notarial law.
13. Period of prescription
Article 154 regulates the limitation period, establishing that disciplinary action prescribes five (5) years, counted from the day the alleged administrative disciplinary offense was committed. It also points out that the beginning of the disciplinary process and / or the existence of a criminal process interrupt the term of the prescription.
Article 159 of Decree Law 26002 stated that disciplinary action prescribes after three years, counted from the day the offense was committed. The second paragraph established that the initiation of the disciplinary process and the existence of a criminal process interrupt the term of the prescription.
14. Responsibility of the notary after the termination
Article 155 of the legislative decree of the Peruvian notary public indicates that the disciplinary process and the sanction will proceed even when the notary has ceased in office.
This norm is preceded by Article 160 of Decree Law 26002, which stated that the disciplinary process and the sanction will proceed even when the notary has ceased in office.
15. Record of sanctions
Article 156 of the legislative decree of the notarial office is entitled "Sanctions Registry", which indicates that all sanctions will be noted, once signed, in the notary's record file.
Article 161 of Decree Law 26002 specified that any sanction shall be noted, once consented, in the notary's record file.
