LEGAL NATURE AND EFFECTIVENESS OF JUDICIAL APPEAL AGAINST A NOTARY’S REFUSAL TO PERFORM A NOTARIAL ACT

Abstract

The article offers a comprehensive study of the legal nature and effectiveness of judicial appeals against a notary’s refusal to perform a notarial act, which constitutes one of the key mechanisms for ensuring legality in notarial practice and safeguarding citizens’ access to the exercise of their civil rights. The relevance of the topic arises from the fact that a notary’s refusal to perform a notarial act often creates real obstacles to the exercise of an individual’s subjective rights, while judicial appeal under Article 50 of the Law of Ukraine “On Notariat” serves as the sole means of legal protection in situations where recourse to another notary is impossible.The article examines the historical development of the regulatory framework governing challenges to notarial actions, the transformation of the procedural nature of such cases from separate proceedings to adversarial litigation, as well as the principal scholarly approaches to defining the subject matter of the dispute and the limits of judicial review. The author substantiates that disputes in such cases are strictly procedural in nature, as they concern not the content or existence of a civil right, but the possibility of its exercise through a notarial act.Special attention is devoted to the analysis of two common claims: the claim to declare a notary’s refusal unlawful and the claim to compel a notary to perform a notarial act. Based on the established case law of the Supreme Court, it is demonstrated that the claim to declare a refusal unlawful constitutes an appropriate and effective means of judicial protection, as a court decision removes concrete procedural obstacles and prevents repeated refusal on the same grounds. Conversely, the claim to compel a notary to perform a notarial act is recognised as an improper remedy.It is emphasised that courts often limit their reasoning to stating the impossibility of interfering in the professional competence of a notary, while insufficiently stressing the impropriety of the chosen means of protection. The author argues for the need to expressly highlight this aspect in the reasoning of judicial decisions in order to prevent misconceptions regarding the alleged “ineffectiveness” of judicial protection and the supposed lack of judicial oversight over notarial activity.