Volume 03 Issue 12-2023
67
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
12
Pages:
67-73
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
This article analyzes the experience of foreign countries in the insurance of Professional Responsibility of notaries.
The role of this type of insurance on the basis of the legislation of foreign countries is revealed in this.
KEYWORDS
Notary, insurance, professional defendant of kilish insurance,lawyer-Lawyer, insurer, policyholder.
INTRODUCTION
While professional liability insurance is not common in
our country, it becomes mandatory for certain areas.
For example, the second part of Article 7 of the Law
"On Notary" stipulates that "a notary engaged in
private practice does not have the right to carry out his
activities without concluding a compulsory civil liability
insurance contract".
THE MAIN RESULTS AND FINDINGS
In world practice, there are various systems of
professional liability insurance of notaries, which can
be systematized into three types.
The first type is individual insurance, where the notary
himself applies to the insurance company (Germany,
Finland, Netherlands, Japan, Brazil).
The second type is self-insurance, that is, mutual
insurance societies of notaries are united (Canada,
Great Britain, South Africa, Australia).
The third type-notarial chamber (order of notaries,
notarial insurance fund) enters into relations
representing the interests of all members when
concluding an insurance contract with an insurance
company, concludes a professional liability insurance
contract (Denmark, USA, Belgium, Sweden, Quebec
province (Canada)). For example, through the Quebec
provincial notary order, its rules and norms of
professional practice, the implementation of notarial
activities, its members can provide high-quality
services to each public. However, despite all the
control mechanisms available in the provision of these
Research Article
INSURANCE OF PROFESSIONAL RESPONSIBILITY OF NOTARIES IN
UZBEKISTAN: EXPERIENCE OF FOREIGN COUNTRIES
Submission Date:
December 12, 2023,
Accepted Date:
December 17, 2023,
Published Date:
December 22, 2023
Crossref doi:
https://doi.org/10.37547/ijlc/Volume03Issue12-12
Izzat Turayevich Palvanov
Tashkent State University of Law Independent researcher of the University of Law, Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 03 Issue 12-2023
68
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
12
Pages:
67-73
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
professional services, it is not possible to completely
exclude professional errors that may harm third
parties. In order to protect the public and to be able, if
necessary, to compensate for the damage caused to
them, the Code of Professions of the Province of
Quebec entitles all members of the professional order
to require professional liability insurance of notaries.
There are various options for such insurance for
members of a professional order. The Order of
Notaries of the Province of Quebec has created its own
professional liability insurance fund for notaries.
Membership of the Foundation is mandatory for every
notary public. Assets of the insurance fund are
separate property and belong to all notaries; they are
intended for professional indemnity insurance only.
Professional liability insurance of notaries in
Uzbekistan is usually carried out according to the first
type of system, that is, each private notary must insure
his professional liability with an insurer with an
appropriate license. We will consider the features of
the professional activity of a notary, the requirements
for a person who wants to engage in notarial activity,
and determine the concept and conditions for starting
the professional responsibility of a notary. According
to the legislation on notariat, notary acts are
performed by notaries of state notary offices and
notaries engaged in private practice.
The professional activity of a notary differs from
representatives of other types of legal activity by a
number of features, in particular:
1) A notary public works in the field of evidentiary law
and provides qualified evidence in a case. Notarial acts
have special evidentiary force, an example of which is
the norm of article 112 of the FC, in which if the
requirements of the law on notarization of a unilateral
agreement are not observed, such an agreement is
considered invalid. FC here determines that such an
agreement is invalid if the parties do not comply with
the requirements of the law on notarization of the
agreement.
2) a notary public works in an area where the parties do
not have disputes and are not required to argue with
each other, so this area is a non-dispute jurisdiction. In
the event of a conflict situation, when the measures
taken by the notary to reconcile the positions of the
parties are futile, the notary should refrain from
resolving disputes and recommend the parties to go to
court;
3) there is a possibility of special access to the
performance of notarial activities related to the
increase in qualification requirements for the notary
public and the nature of his preparation for the
implementation of this activity. In different countries,
there are different models and stages of preparation
for notarial activities, but all of them are related to the
acquisition of additional education and practical skills
that are not covered by the general standard of higher
legal education. These steps usually include: first stage-
law degree; second stage-diploma in notary law; third
stage - practice in notary offices; The fourth stage is
continuous professional development.
A person who wants to engage in notary activity in
Uzbekistan must be a citizen of Uzbekistan, have a
complete higher legal education, know the state
language, have at least three years of experience in the
field of law, including having at least one year of work
experience as a notary assistant or consultant in the
state notary office, passing a qualification exam and
receiving a certificate of the right to engage in notary
activity. A person with a criminal record, a person who
has been declared by the court to be legally
incapacitated or unable to act cannot be a notary
public. In addition, a notary may engage in
entrepreneurship, advocacy, be the founder of
Volume 03 Issue 12-2023
69
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
12
Pages:
67-73
SJIF
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FACTOR
(2021:
5.
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)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
lawyers' associations, serve in the civil service or local
self-government bodies, as part of other legal entities,
also, it is not possible to perform other paid work
except for teaching, scientific and creative activities.
He must also comply with the norms of professional
ethics set forth in the Professional Code of Ethics of
Notaries;
4) the notary performs public legal functions on behalf
of the state, which reflects his legal status as a person
in the service of the state and society;
5) notaries engaged in private notarial activities in the
Latin notary system work in the mode of self-financing
and independent organization of their activities. At the
same time, notaries are accountable and controlled by
both state authorities and the bodies of the notary
community.
The main areas of notarial activity are as follows:
ensuring the indisputability of rights and facts, as well
as the evidential force of documents; ensuring legality
when concluding contracts and performing other
notarial actions; providing legal assistance to persons
applying to a notary for notarial acts. The requirements
for notarial activities are determined by the Law "On
Notary Publicity" and notaries work on the basis of the
Instruction of the Minister of Justice of the Republic of
Uzbekistan dated January 4, 2019 No. 2 mh, Appendix 1
"On the procedure for performing notarial actions by
notaries". Failure of a notary to perform one or other
tasks arising from the performance of his duties, if he
has caused damage to another person due to his
actions (inaction), carelessness or negligence, may
cause the notary to be held professionally liable.
The Law "On Notary" stipulates the responsibility of
public and private notaries: damage caused to a person
as a result of illegal or careless actions of the state
notary shall be compensated in accordance with the
law. A person who applies to a notary to perform a
notarial act: gave false information on any issue related
to the performance of a notarial act; provided false
information related to the performance of notarial
acts; submitted invalid and/or forged documents; The
notary shall not be liable if the notary does not disclose
the absence or presence of persons whose rights or
interests may affect the notarial acts applied to the
person.
Many authors, among them S.Ya.Fursa, P.M.Pavlik,
T.M.Kilichava, S.Khimchenko, study the problems of
the liability of notaries in case of non-fulfillment or
improper fulfillment of professional obligations and
apply the term "civil-legal liability".
We believe that the use of the term "civil-legal
responsibility" in this context is not entirely correct,
because, as mentioned above, we are talking about the
responsibility of the notary public in the performance
of professional, i.e., notarial activities. If we analyze the
norms of the Law "On Notary", we come to the
conclusion that the legislator speaks only about the
responsibility that arises when a notary does not
perform or incorrectly performs professional duties.
Therefore, it would be more appropriate to use the
term "professional liability", because it covers the
liability of the notary only in cases where he did not
perform his professional duties or did not perform
them properly. In all other cases of notary activity, as
well as any other person not related to the
performance of professional duties, we can talk about
civil liability.
The professional responsibility of a notary is
mandatory sanctions aimed at restoring the violated
rights and interests to a notary who performed work in
accordance with the certificate of the right to engage
in notarial activity and was included in the unified
register of notaries, if they did not perform their
Volume 03 Issue 12-2023
70
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
12
Pages:
67-73
SJIF
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FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
professional duties, state measures or did not perform
properly, and caused damage to third parties (
additional weights).
Analyzing the norms of Articles 18-19 of the Law "On
Notary", the conditions for the occurrence of
professional liability of a notary are illegality, it can be
concluded that regardless of the damage and guilt
caused to the client and/or third parties (including in its
absence).
Illegal actions of a notary consist of violating the
requirements of the legislation and other normative
legal documents on the implementation of notarial
activities and making professional mistakes by the
notary, they are understood as actions or omissions
that deviate from the expectations of the actual results
of the notarial activity and lead to a deviation of the
actual results of the notarial activity from the expected
ones and negative personal and/or property
consequences for clients and/or third parties, i.e. non-
fulfilment or improper fulfillment of the obligation of
the notary public to confirm rights, as well as legally
significant facts, it is also manifested in the failure to
perform other notarial actions in order to ensure their
legal validity.
Damage to the client of the notary and/or third parties
due to their receiving poor quality notary services, that
is, it is expressed in the fact that it does not comply
with the requirements of regulatory legal documents
or does not receive services at all. We agree with the
position of the authors (S. Khimchenko and others)
that the notary is also proprietary to the client and/or a
third party, also claim that it can cause moral damage,
it consists of moral sufferings, i.e. humiliation, damage
to business reputation, and should be taken into
account separately.
The existence of a causal relationship between the
illegal behavior of the notary and the negative
consequences for the client and/or third parties as a
result of the notary's professional mistakes is one of
the conditions for the emergence of professional
liability.
The view that the notary's professional liability occurs
regardless of his fault seems to be very balanced and
reasonable. Determining the presence or absence of a
notary's guilt is not considered a mandatory
component for the occurrence of his professional
liability. In comparison, let's look at the norms of
articles 1457 -1458 of the FC of the province of Quebec.
In these norms, the following conditions are defined
for the professional liability of a notary, i.e.: the
behavior of a notary does not correspond to the norms
of the average level; existence of damages or losses
caused to another person; causal connection, that is,
the existence of a direct connection between the
notary's actions and the damage caused. As for the
question of the need to bring the notary's fault to
professional responsibility, two options are being
considered. According to the first option, if the notary
is not required to guarantee the result of the notarial
act, the presence of guilt is mandatory. According to
the second option, if the notary must also guarantee
the result of the notarial act, then the notary's guilt is
not important to bring him to professional
responsibility. It should be noted that in developed
countries, the tradition of taking into account only
three conditions for determining the professional
liability of a notary is widespread, and the condition of
the presence of fault is not given special attention in
this case.
It has been proven that the notary's professional
responsibility arises regardless of his fault. We will see
that this approach is correct and reasonable. The
strengthening of liability for notaries is aimed at
Volume 03 Issue 12-2023
71
International Journal Of Law And Criminology
(ISSN
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VOLUME
03
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Pages:
67-73
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(2023:
6.
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OCLC
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Publisher:
Oscar Publishing Services
Servi
protecting the interests of their clients and third
parties who may be harmed by the failure or improper
performance of their professional duties by notaries.
Article 19 of the Law "On Notary" stipulates that a
private notary shall fully compensate for the damage
caused. It is noted in the scientific literature on issues
of notarial liability that it is inappropriate to apply a
form of liability, such as the collection of neustoyka, to
a notary if notarial actions are not performed properly.
The main form of liability is damage compensation and
the violated right must be restored.
In our opinion, this approach does not fully justify itself.
The main form of professional liability is indeed
compensation for damages, but at the same time, for
professional liability in general, and for a notary in
particular, as a type of civil legal liability, the form of
liability, such as the recovery of a fine, is fully used.
In accordance with the current legislation, a notary
engaged in private notary activity must have
professional liability insurance.
The subject of the notary's professional liability
insurance contract is the insured's property interests -
non-fulfillment or notarial activity of a private notary
related to liability for damage caused to third parties as
a result of improper execution. According to the
requirements of Article 191 of the Law "On Notary",
only private notaries are the insured parties in the
notary's professional liability insurance contract.
Beneficiaries under the contract of professional liability
insurance of notaries are individuals and legal entities
who apply to the notary for notarial acts and/or third
parties.
Insured risks under the notary's professional indemnity
insurance contract, in our opinion, may be: legal
ignorance of clients caused by notary public not
explaining their rights and obligations to clients, not
warning them about the consequences of notarial
actions; disclosure of information about documents
known to him in connection with the performance of
notarial acts by a notary, with the exception of cases
provided for by law; performance of a notarial act by
the policyholder that is contrary to the current
legislation or international law norms and harms the
notary's client and/or third parties; loss, destruction or
damage to documents related to the notary's
professional activity.
In the notary's professional liability insurance contract,
it is possible to propose to consider the insured event
as an event provided for in the notary's professional
liability insurance contract, as a result, the notary's
professional responsibility for compensation of
damage caused to the client and/or third party is not
fulfilled, or as a result of improper performance of
professional duties. In order to receive insurance
compensation, the insured (beneficiary) must
document the occurrence of an insured event, it is also
necessary to provide the insurer with documents
confirming the occurrence of an insured event, the
amount of damage, and the necessary documents to
pay the insurance compensation in accordance with
the insurance requirements. After the insurer submits
all the necessary documents that are important for
making a decision on the recognition of an insured
event, the insurer draws up an insurance report and
makes a decision on whether to pay insurance
compensation
or
refuse
to
pay
insurance
compensation, the policy owner and/or beneficiary will
be notified in writing.
The notary's professional liability insurance contract
must provide grounds for refusing to pay insurance
indemnity. In addition to the grounds established by
Article 954 of the FC, other grounds may be provided
for in the insurance contract: activities of the
policyholder not related to professional activity;
Volume 03 Issue 12-2023
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International Journal Of Law And Criminology
(ISSN
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VOLUME
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Pages:
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SJIF
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Publisher:
Oscar Publishing Services
Servi
actions by the policyholder against persons who do not
have legal grounds for granting the right to notarial
security; the effect of natural phenomena.
The notary's professional liability insurance contract is
canceled in accordance with the requirements of
Article 948 of the FC, and if after its entry into force the
possibility of an insured event has disappeared and the
existence of an insured risk has ceased, insurance
event, due to the termination of the notary's
professional activity in accordance with the current
legislation, from the moment of such events;
cancellation of the certificate of the right to engage in
notarial activity for the owner of the insurance policy.
Professional liability insurance of notaries is carried out
in order to ensure compensation for damage caused to
the property interests of the insured's clients and/or
third parties and to the notaries' own interests, this is
confirmed by the norm of Article 18 of the Law "On
Notary". In order to ensure compensation for damages
caused by notarial activities, a private notary is obliged
to conclude an insurance contract for his liability for
private notarial activities.
Taking into account the mentioned problems, L.M.
Gorbach, A.B. Kaun, A. Zaletov, T.A. Govorushko
emphasize that notary professional liability insurance
should be carried out in a mandatory form.
CONCLUSION
The analysis of the current legal norms allows us to
conclude that the professional liability insurance of
notaries should be carried out in a mandatory form,
because in Article 191 of the Law "On Notary" the
requirements for insuring the professional liability of
notaries, the insurance event and the minimum
amount of the insurance amount are defined. Although
some important terms of the notary's professional
liability insurance contract are defined by the
established norm, other important terms of the
insurance contract are not defined at all (the subject of
the insurance contract, the insurance tariff, the
amount of the insurance payment and the terms of its
payment, the term of the insurance contract).
contract, procedure for modification and termination,
terms of insurance payment, reasons for refusal of
insurance
payment,
rights,
obligations
and
responsibilities of the parties), this shows the
significant shortcomings of this provision. Therefore, it
is appropriate to add the sentence "not contrary to the
law" after the words "notary" to the third part of
Article 191 of the Law "On Notary".
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Volume 03 Issue 12-2023
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Pages:
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SJIF
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FACTOR
(2021:
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)
(2022:
5.
705
)
(2023:
6.
584
)
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Oscar Publishing Services
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