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The Notary according to the new Law on Notaries
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On 8 November 2002, the Parliament of the Republic of Moldova adopted a new Law on Notaries. What makes the new law different from the old one, from the conceptual point of view, is that it reverts to the state-run system of notaries. The law introduces a mixed system of notaries in Moldova: that of state notaries and that of private notaries. At the same time, notary services may be provided by people designated by relevant local public administration authorities and Moldovan diplomatic councils.
Although the new law suffers of many more flaws, at present it is interesting to look at how it is going to be applied rather than how it can be substantially changed.
Without going into too much detail about the new law, we will refer only to those aspects that prompted its adoption. Firstly, the previous law on notaries was accused of giving too little competence to the Ministry of Justice in what concerns the control, regulation and organisation of this profession, which competence was largely exercised by the Union of Notaries. Another criticism related to the excessive costs of notary services.
According to the new law, the Ministry of Justice, as the central specialised body, has been granted a number of additional powers in licensing and supervising the activity of notaries, such as:
- Regulation and organisation of the activity of notaries;
- Developing and approving the regulation on the method of issuing notary papers, the form and contents of records of notary papers, the sample forms used to issue notary papers;
- Keeping the notary archive;
- Elaboration and approval, in common with the State Archive System, of the regulation on the method of preparation and submission of papers into the archive;
- Appointment of notaries;
- Withdrawal of notary licenses;
- Application of disciplinary sanctions;
- Developing and approving the regulation on the training of new notaries;
- Setting up the Licensing Commission for the activity of notaries;
- Developing and approving the regulation on the Licensing Commission;
- Keeping the State Register of Notaries;
- Supervising the activity of notaries;
- Establishing the number of necessary state, private and trainee notaries;
- Ensure a singe notary practice and undertake the statistic analysis of notary acts;
- Keeps a record of the successor files and issued testaments.
It is to be noted that most of these attributions used to belong to the Ministry of Justice under the old law too, yet, unfortunately, they were never applied properly, both for objective and for subjective reasons.
Since one of the key arguments for passing the new law was the excessive cost of notary services, we will refer below to these costs as they stand under the new law.
According to Article 30 of the Law on Notaries, the issue of notary papers, notary consultations, drafting of papers and providing other notary services are all for a fee. The following fees are paid for notary services:
- the state tax, which is paid by the client into the state budget;
- the fee for the notary service itself.
The value of these fees is to be indicated in the notary paper and in the register of notary acts.
As for the state tax, it is fixed by law and may not be changed. It is charged on all notary services.
As for the fee for the notary service, the Law distinguishes between services provided by state and private notaries. The latter determines independently the fees on services and the former has to determine the fees in agreement with the client, according to the relevant methodology approved by the Parliament (although there is no direct provision to such effect in the law).
The fees received by state notaries for their services are paid into the state budget, whereas those received by private notaries are to be used to cover current expenses related to the activity of the notary, such office and equipment maintenance, salaries for the technical personnel etc. Remaining is the income of the private notary that is subject to contributions into the state social insurance budget and other taxes. Private notaries are subject to tax pursuant to current fiscal legislation.
Thus in what regards the cost of services provided by private notaries, there have not been many changes.
As for the changes to the costs of services by state notaries, one can hardly judge about these at the moment for since the law entered into force in February 2003 there are no state notaries as yet.
Obviously, an important part of blame for this state of affairs belongs to the Ministry of Justice, which failed to include expenditure related to state notaries in its proposals for the 2003 Budget Law.
This mistake is to be corrected only now. Recently, the Ministry of Justice drafted a law on the completion of the 2003 Law on State Budget, whereby it has been proposed to leave 70% of state taxes paid for notary acts issued by notaries with the Ministry of Justice. This money will be used for the organisation and maintenance of offices of state notaries.
At the same time, only now makes the Ministry of Justice efforts to identify the necessary space for state notaries. Most often these are being arranged in the premises of district courts, which find it hard sometimes to find free office space.
Of course, the failure to resolve the above mentioned problems (the technical and material support of state notaries) in due time might be due to the difficult economic situation of the country. It is not the case, though, with the activity of developing relevant regulations on the notary, which activity does not require substantial financial efforts from the Ministry of Justice. Nonetheless, the latter has recently concluded the sample Nomenclature of notary files, the forms of registers necessary for the notary activity, the Regulation on training of notaries, the Regulation on the Licensing Commission of notary activity, the draft Regulation on the method of filling out the notary acts, which sets a singe notary practice for all notaries.
By now the personal files of practising notaries have already been checked. The list of licensed notaries has already been published in the Government’s Official Monitor (article 88 of the Law on Notaries). A computerised programme of record keeping of successor files and testaments is to be developed soon.
At the same time, a Plan of Action has been developed, which provides the concrete terms of undertaking certain measures, to facilitate the application of the new law.
On 19 April 2003 the general meeting of notaries was held, during which the participants elected from among themselves the Licensing Commission and the Group of Control of Notary Activity.
A separate issue that the Ministry of Justice has always faced and which has exacerbated now is the shortage of personnel in the ministry’s department on notaries and lawyers. To address this problem, the Government developed a draft Decision which proposes to set up a special structure for the notary and lawyers, stuffed appropriately. Unfortunately, the Ministry of Finances rejected the financial support for setting up the Department on Notaries and Lawyers.
Indeed, the application of the new Law on Notaries has revealed much more issues than mentioned here. Their resolution (in financial terms mostly) is the price that the ordinary tax payer will have to pay to enjoy the services of state notaries.