Special questions of judiciary practice to recognize notarius executive notes unlessable

Abstract

In the article, on the basis of the analysis of doctrinal sources and materials of the judicial practice, are considered issues of protection of debtors’ interests in notarial legal relations in relation to executing inscription execution. A characteristic is given to the recognition of the executive inscription as not being enforceable as a method of protecting the debtor’s rights and interests. The peculiarities of consideration by the courts of the defined category of cases are analyzed. The most typical mistakes of notaries, which become the basis for solving cases in favor of debtors, are revealed.

Thus, the recognition of the executive inscription of the notary as not being enforced is a separate way of judicial protection of the rights of the debtor in cases of its commission contrary to the requirements of the law, in the presence of a dispute between the debtor and the collector. The relevant protection is carried out in accordance with the rules of civil or economic proceedings, in the procedure of legal proceedings.

It should be emphasized separately that the satisfaction of the debtor’s claim with the subsequent recognition of the executive inscription as not being enforced does not deprive the taxpayer of the right to collect the debt in court, but merely states that it is impossible to protect his violated rights notarially.

An analysis of court case studies by the courts of this category of cases shows that the most common reasons for satisfaction of debtors’ claims are: execution of executive inscriptions in the absence of the necessary documents envisaged by the List; execution of an executive inscription in the event of a dispute over arrears that was or is being considered in court; execution of an executive inscription in case of missed application of time limits for making a claim, etc.

 This tendency necessitates paying special attention to typical mistakes of notaries in the execution of executive inscriptions at the level of the guidance clarifications of the Ministry of Justice of Ukraine and the higher courts. The latter, according to our opinion, will minimize the number of court cases on the recognition of executive writings as non-enforceable and will promote the unity of notarial practice.