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SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of June 15, 2000 No. P-99/2000

About some questions connected with legal status of private notaries

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Vasilevich G. A., Boyko T. S. judges., Vorobey G. A., Kenik K. I., Podgrusha V. V., Sarkisovoy E.A., Tikovenko A. G., Filipchik R. I., Shabaylova V. I. based on article 40 of the Constitution considered the appeal of the Ministry of Justice of the Republic of Belarus concerning opinion of the Constitutional Court on legal status of private notaries.

By constitutional court it is determined that private notaries are registered as the entrepreneurs performing the activities without formation of legal entity. The conclusion of the Constitutional Court of the Republic of Belarus of January 23, 1998 provides that reference of private notarial activities in the tax matters to business activity is not based on resolutions of the Supreme Council of the Republic of Belarus of November 26, 1992 and on January 18, 1994, other legal acts. However and after acceptance by the Constitutional Court of the specified Conclusion the private notarial activities performed by private notaries continue to be equated to entrepreneurial.

The Ministry of Finance and the State Tax Committee believe that private notarial activities belong to business activity as it is performed based on the license and is directed to systematic profit earning.

With respect thereto the Ministry of Justice asks the Constitutional Court to express the opinion concerning legal status of private notaries.

Having analyzed regulations of the Civil code of the Republic of Belarus, the laws of the Republic of Belarus "About the state notariate", "About entrepreneurship in the Republic of Belarus", "About the income tax from physical persons" and other regulatory legal acts, the Constitutional Court comes to the following conclusion.

According to part two of Item 1 of Article 1 of the Civil code of the Republic of Belarus business activity is the independent activities of legal entities and physical persons performed by them in civil circulation on its own behalf, on the risk and under the property responsibility and directed to systematic profit earning from use of property, the sales of the things made, processed or acquired by specified persons for sale and also from performance of works or rendering services if these works or services intend for realization to other persons and are not used for own consumption.

According to the Regulations on notariate and notarial activities in the Republic of Belarus approved by the Presidential decree of the Republic of Belarus of February 2, 2000 N 38, notariate of the Republic of Belarus is the system including state bodies and officials who provide protection of state interests, rights and legitimate interests of citizens and legal entities by implementation of notarial activities. Notarial activities are understood as making on behalf of the Republic of Belarus of the notarial actions provided by acts of the legislation.

Notarial activities in the Republic of Belarus are performed by notaries and other persons who by the legislation are granted such right. At the same time the notaries public and notaries who are engaged in private notarial activities treat notaries. The notary has seal with the image of the State Emblem of the Republic of Belarus, and the notary public - and with the name of office of notary public, specifying of sequence number, and also stamps of certifying texts and the corresponding forms.

In the activities notaries are guided by the Constitution of the Republic of Belarus, the laws, Regulations on notariate and notarial activities, other acts of the legislation.

The analysis of the current legislation on the matter demonstrates that the legislator granted to notaries when making notarial actions the equal rights and identical obligations irrespective of whether they work in office of notary public or are engaged in private notarial practice.

Features of implementation of notarial activities by the notaries who are engaged in private notarial activities that does not change its nature can be provided by acts of the legislation.

The private notary, rendering services of legal and technical nature, does not enter civil legal relationship with persons who addressed for making of notarial actions. When implementing notarial activities he has no right to be engaged in other activities, except the determined Item 22 of the Regulations on notariate and notarial activities. The private notary acts on behalf of the state while the business owner acts on its own behalf.

Thus, the analysis of the given regulations demonstrates that the notarial activities performed by private notaries are public which main objective - protection of state interests, rights and legitimate interests of citizens and legal entities, but not profit earning from performance of works or services as it takes place in case of entrepreneurship. The notarial actions made by the state and private notaries have identical legal force and attract identical consequence in law, are guaranteed and protected by the state.

Introduction of money for making of notarial actions (except for the state fee) is compensation of private notaries, but not extraction by them arrived.

The law "About the Income Tax from Physical Persons" in edition of the Law of March 9, 1999 differentiates the physical persons who are engaged in business activity without formation of legal entity and persons performing private notarial activities as subjects of the taxation.

The constitutional court considers that licensing of private notarial activities is not legal basis for reference of private notaries to entrepreneurs as licensing is special procedure of the official certificate (recognition) of the right to maintaining certain type of activity with observance of normative requirements and standards which purpose is in this case ensuring due level and quality of accomplishment of notarial actions by private notaries.

Similar approach to determination of content of notarial activities is established in the legislation of the Russian Federation in which it is specified that notarial activities are not entrepreneurship and does not pursue revenue generating purpose.

Taking into account stated and according to Article 40, part one of article 116 of the Constitution, the Conclusion of the Constitutional Court of January 23, 1998, Articles 7, 36 Laws "About the Constitutional Court of the Republic of Belarus" the Constitutional Court

solved:

1. The notarial activities performed by the notaries who are engaged in private notarial activities are not business activity. In this regard registration of private notaries as individual entrepreneurs has under itself no legal causes.

2. Note that the Conclusion of the Constitutional Court of January 23, 1998 in which the legal line item of the Constitutional Court that the notarial activities performed by private notaries are not entrepreneurial was stated became effective from the date of declaration, that is since January 23, 1998.

3. Publish this decision according to the current legislation.

 

Chairman

Chairman of the Constitutional Court

Republic of Belarus

G. A. Vasilevich

 

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