The validity of a notary's license is suspended for up to six months in the event of a notary's violation of the law, and when performing notarial actions that violate the rights and legitimate interests of the state, individuals and legal entities, the violation of rights must be indisputably established.
K. applied to the court for recognition as illegal and cancellation of the order of the Registration Service Committee of the Ministry of Justice of the Republic of Kazakhstan No. 17 dated February 21, 2014 on suspension of the state license for the right to engage in notarial activity No. 0000740 dated March 24, 2000 for a period of six months. She motivated the demands by the fact that the basis for sending a submission to the Ministry of Justice of the Republic of Kazakhstan on the suspension of the license is an act on the results of an unscheduled inspection, which does not confirm that there are violations in her actions that serve as the basis for suspending the state license for the right to engage in notarial activities. By a decision of the Rudnensky City Court of August 11, 2014, K.'s application was denied. By the decision of the appellate and cassation judicial boards of the Kostanay Regional Court, the decision of the court of first instance remained unchanged. The Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court overturned the judicial acts of local courts due to the incorrect application of substantive law in the case, and made a new decision to satisfy K.'s application. on the recognition as illegal and cancellation of the order of the Registration Service and Legal Assistance Committee of the Ministry of Justice of the Republic of Kazakhstan on the suspension of the state license for the right to engage in notarial activities on the following grounds.
It follows from the case file that on December 28, 2014, the Department of Justice of the Kostanay region received a complaint from G. about the actions of a private notary in the city of Rudny, K., therefore, an unscheduled inspection was ordered based on the arguments of the complaint. According to the results of the audit, on January 22, 2014, the Department of Justice of the Kostanay region issued an act that established two violations in the activities of notary K. The above act was the basis for the Department of Justice of the Kostanay region to submit a submission on the suspension of the license of a private notary of the city of Rudny K. in accordance with subparagraph 5) of paragraph 2 of Article 10 of the Law of the Republic of Kazakhstan "On Notary" (hereinafter - the Law). On the basis of the submission, the disputed K. issued an order suspending the license. Disagreeing with the order, K. appealed to the court and asked to recognize the order as illegal and cancel it. The Court of First instance, refusing to satisfy the stated claims, concluded that K. violations of the law were committed, which were the basis for the issuance of Order No. 17 dated February 21, 2014 on the suspension of the license for the right to engage in notarial activities for a period of six months. The appellate and cassation instances, leaving the court's decision unchanged, agreed with the conclusions of the court of first instance.
The Supervisory Judicial Board concluded that the judicial acts that took place in the case were unlawful, based on the incorrect application of substantive and procedural law. When considering an application to appeal the legality of an order to suspend a license, the court must verify the circumstances preceding the issuance of the order, assess the validity of its issuance and, depending on the established circumstances of the case, make a decision that meets the requirements of Article 218 of the CPC. However, the courts concluded that they could not enter into a discussion of the assessment of the actions of the authority responsible for deciding on the suspension of the license. Meanwhile, it is impossible to make a legitimate and reasoned decision on the case without clarifying the circumstances preceding the issuance of the order. It follows from the evidence available in the case that the contested order was issued on the basis of a submission received from the Kostanay Region Department of Justice following an audit, during which employees of the Kostanay Region Department of Justice identified two violations in the activities of notary K., which are reflected in the act of January 22, 2014. The first violation established by the inspectors is that the notary violated paragraph 32 of the Rules for Performing Notarial Acts by Notaries (hereinafter referred to as the Rules), which resulted in failure to inform the interested parties and failure to inform the authorized bodies about the mistake. The second violation is indicated with reference to subitems 2, 3) of Article 48 of the Law, expressed in the failure to hand over to the person who applied for a notarial act a resolution on refusal to perform a notarial act.
After analyzing the evidence presented, the supervisory judicial board concluded that the violations reflected in the inspection report were not confirmed. According to paragraph 32 of the Rules, it is established that if a notary discovers that, as a result of an error, a notarial act committed by him contradicts the current legislation, or violates the rights and legitimate interests of individuals and legal entities, he brings this information to the attention of interested persons and explains to them the procedure for applying to the court (to cancel the notarial act). The notary shall inform the territorial body of justice and the territorial notary chamber about the fact of the error within three working days from the moment of discovery. Under the mistake made, the inspectors indicate the issuance of a notary K. certificates of inheritance under the law for 1/3 of the pension savings of the deceased G. to his wife T., believing that by virtue of the 1997 court decision on the dissolution of the marriage, the marital relationship between the deceased G. and T. was terminated, therefore T., not being a spouse, is not an heiress.
Meanwhile, the inspectors did not take into account, and the court, considering the dispute that arose, did not take into account that according to Article 40 of the Code "On Marriage and Family", approved by the Law of the Kazakh SSR dated August 6, 1969 and in force until December 17, 1998, for the dissolution of marriage on the basis of the final court decision of 26 Since June 1997, registration of a divorce is required at the request of one or both spouses at the State civil registration authority (Articles 167-170 of this Code). The marriage is considered terminated from the moment the divorce is registered with the authorized body. According to the requirements of article 42 of the aforementioned Code, only with the termination of marriage, the personal and property rights and obligations of the spouses arising from their marital relations cease, and its dissolution in court does not entail such consequences. Since the spouses G. and T. did not register the divorce in accordance with the procedure established by law, their marriage was terminated due to the death of G.'s spouse, therefore, T. remained the legal spouse of the deceased G. until his death, and after death she became the legitimate heir. Moreover, when applying to a notary, T. A duplicate marriage certificate, issued to her on May 22, 2012, was presented. Therefore, notary K. the certificate of inheritance for 1/3 of the pension savings was issued by T. legally. In this regard, there were no grounds to inform the territorial body of justice and the territorial notary chamber and explain to the parties the procedure for applying to the court (to cancel the notarial act).
The second violation specified in the act is the failure of one of the heiresses to issue a decree on the refusal to perform a notarial act. An analysis of the case file shows that K. also did not commit any violations of the law. After the heirs are issued a certificate of inheritance for 1/3 of the pension savings to the notary K. On November 28, 2013, G. submitted a written statement stating that T.. She is not the spouse of the deceased G. due to the dissolution of the marriage in 1997. At the same time, she presented the certificate No. 7983 dated October 31, 2013, issued by the head of the Department of Justice of the city of Rudny M. It followed from the certificate that the marriage between G. and T. was dissolved on the basis of the decision of the Rudny city court of June 26, 1997.
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