The notary is a third party at the conclusion legal transactions. Information obtained by a notary in the course of his activities is confidential and is not subject to disclosure to third parties. The notary bears legal liability for any leak of information. About what notarial secrecy is and what are the consequences of its violation - we'll talk in this material.

The secret of performing notarial acts in the Russian Federation: articles and legal justification

Legislation Russian Federation in the field of work of a notary (notarial secret, Article 5 of the Law) determines that a notary in his work maintains independence and impartiality. The activities of a notary are based on the principles of existing legislation on the territory of the Russian Federation, as well as international treaties and documents.

According to the law, the principle of secrecy notarial act is that the notary is prohibited from declaring any information obtained during the execution of professional activity. Thus, the secrecy of notarial acts is a fundamental rule of the functioning of the notary office.

Important: Notarial secret, along with medical information, is included in the list of confidential information. Therefore, it is impossible to oblige not to disclose details of documents or transactions even after the notary ceases to engage in professional activities.

Situations in which a notary can give away a secret

The law defines a list of cases in which a notary can, and sometimes is obliged to issue confidential information. Information may be provided:

• Participants notarial process(for example, parties to the contract), or their legal representatives
• If the notary chamber applies for information
• If notarial information is part of judicial proceedings. (Information is provided to investigators of the prosecutor's office, court, executive bodies in the presence of legal grounds)
• If the notarial information is a certificate of the estimated value of the property transferred as a gift or inheritance. Available upon request tax service
• If the information disclosed is and the death of the testator occurs

What will happen to the disclosure of notarial secrets?

The Law on Notaries (Article 17) states that if the secrecy of notarial activities is violated, this entails liability, and the notary who committed the violation must judicial procedure compensate for damage caused by the violation. The damage can be of both a material and moral nature.

Important: the law determines compensation only in situations where the intentional nature of the notary’s actions is proven. If the culprit proves during the investigation that there is no malicious intent in the information leak, he can avoid liability.

The notary is also responsible for those who temporarily replace him in positions. In this case, the notary pays the plaintiff an amount for the damage caused, and later, with a recourse claim, appeals to the person through whose direct fault the violation occurred.

Important: The need to maintain notarial secrecy is assigned to lawyers in private practice. If information was disclosed state executor, then liability does not arise, because at government agencies Justice there is no obligation to observe notarial secrecy (the exception is state notaries, who bear responsibility on an equal basis with private ones)

In addition to liability to the plaintiff, the notary may also incur disciplinary liability. Article 12 of the Law on Notaries allows a notary to be deprived of the right to engage in core activities for the above violation. In some cases, criminal proceedings are also carried out.

NOTARIAL SECRET NOTARIAL SECRET (secret of notarial actions) is a type of professional secret. According to Art. 19 of the Fundamentals of the Legislation of the Russian Federation on notaries, a notary is obliged to keep secret information that has become known to him in connection with his professional activities. The court may release the notary from this duty of secrecy if a criminal case has been brought against him in connection with the commission of a notarial act. Since notaries provide information about the notarial acts they have performed to notarial chambers, officials of these chambers are also required to preserve the N.T. For disclosing N.t. and causing damage to a notary engaged in private practice, the perpetrators are liable under the legislation of the Russian Federation (Article 29 of the mentioned Fundamentals).

Large legal dictionary. - M.: Infra-M. A. Ya. Sukharev, V. E. Krutskikh, A. Ya. Sukharev. 2003 .

See what "NOTARIAL SECRET" is in other dictionaries:

notarial secret- (secret of notarial acts) a type of professional secret. According to Art. 19 of the Fundamentals of the Legislation of the Russian Federation on notaries, a notary is obliged to keep secret information that has become known to him in connection with his professional activities. The court may... Large legal dictionary

A type of professional secret. According to Art. 19 of the Fundamentals of the Legislation of the Russian Federation on notaries, a notary is obliged to keep secret information that has become known to him in connection with his professional activities. The court may exempt the notary from this... ... Legal dictionary

- (professional). Some titles, positions and occupations are associated with their practical implementation with obtaining information and discovering circumstances, the disclosure of which could harm the public opinion, and sometimes in front of... ... encyclopedic Dictionary F. Brockhaus and I.A. Efron

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professional secret- the general name of a group of secrets protected by law, the need for compliance with which arises from confidential nature individual professions. To P.t. include, in particular, attorney-client privilege, medical confidentiality, notarial confidentiality. P.t. should be distinguished... Large legal dictionary

Objects of information constituting professional secrets- a) medical confidentiality; b) confidentiality of communication; c) notarial secret; d) attorney-client privilege; e) the secrecy of adoption; f) secrecy of insurance; g) the secret of confession... Large legal dictionary

Confidential information Large legal dictionary

Confidential information- (from Latin confidentia trust; English confidential information) documented information, access to which is limited by law. Rules for handling C.I. in the Russian Federation are determined in accordance with the Federal Law “On Information,... ... Encyclopedia of Law

Publishing activities- preparation for release or preparation and release of publications of any kind. Before the law on publishing house is adopted, it is regulated by the Temporary Regulations on Publishing House. activities in the RSFSR (approved by government decree No. 211 dated April 17, 1991). According to him... ... Publishing dictionary-reference book

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The secret of notarial action– professional secret, since it is associated with the non-disclosure of information received by a notary in the process of performing his professional functions. She is the guarantor of immunity privacy, since the person who contacts the notary must provide certain facts relating to his personal life (in otherwise the notarial act will not be performed).

Subjects of the secrecy of notarial action:

Notaries;

Persons working in notary office: persons undergoing internships, notary assistants, consultants and technical performers, including after resignation or dismissal;

Officials notary chamber who may become aware of information as a result of checking the activities of a notary.

The content of a notarial secret consists of any information related to the notary’s performance of his professional functions, as well as information about the private and family life of the principal. A notary is prohibited from disclosing information or documents that have become known to him in connection with the performance of notarial acts. Thus, The concept of notarial secrecy includes:

Information about the persons in respect of whom the notarial act was performed;

The very fact of contacting a notary or the absence thereof;

Documents requested by the notary;

Any other information obtained by the notary.

The guarantee of compliance with this rule is established by the Fundamentals of Notaries procedure providing information, according to which information (documents) about the performance of a notarial act can be issued only to persons on whose behalf or on whose behalf these acts were performed.

Notarial secrecy fulfills two functions: 1) guarantor of the notary’s activities, since it ensures non-interference of other persons in his professional activities; 2) non-infliction of harm to persons who contacted him.

Certificates of notarial acts issued to the authorities of the court, prosecutor's office, investigation "in connection with criminal or civil cases and also upon request arbitration court in connection with disputes pending before it.” Issuance of certificates to bodies implementing criminal prosecution, must be justified by the presence of a criminal case in their proceedings. Lack of indication this fact in the request may serve as a basis for the notary to refuse to issue the relevant information.

According to the Code of Civil Procedure of the Russian Federation, a notary is obliged to provide the court with the written evidence he requires. A notary can also be a party to a case (plaintiff or defendant) or a witness.

The issuance of duplicates of notarized documents is carried out only to persons “in whose name or on whose behalf notarial acts were performed”, upon their written application. Certificates of will are issued only after the death of the testator. This rule is absolute and does not provide for exceptions.

Stanskova U.M.

“Official and professional secrets: define, preserve, protect”

“Human Resources Directory, No. 7, 2010

Additional materials: background information

Characteristics of certain types of official and professional secrets

MIND. Stanskova

Senior Lecturer at the Department of Labor and Social Law

South Ural State University

List of confidential information, approved. by Decree of the President of the Russian Federation dated March 6, 1997 No. 188, professional secrecy includes: medical, notarial, lawyer's secrecy, secrecy of correspondence, telephone conversations, postal items, telegraphic or other messages, etc.

The legislation of the Russian Federation provides for the protection of medical and medical confidentiality. According to Art. 61 Fundamentals of legislation of the Russian Federation on the protection of the health of citizens dated July 22, 1993 No. 5487-1 (hereinafter referred to as the Fundamentals of legislation on health protection) medical confidentiality compiles information about the fact of seeking medical help, the citizen’s state of health, the diagnosis of his disease and other information obtained during his examination and treatment. Article 15 Family Code The Russian Federation considers the results of an examination of a person entering into marriage to be a medical secret.

In our opinion, medical secrecy is broader in content than medical secrecy. The difference lies in the subject who is obliged to keep the secret. According to its semantic meaning, medical confidentiality must be preserved by doctors, and medical confidentiality must be maintained by all medical workers. The fundamentals of legislation on protecting the health of citizens establish that the disclosure of information constituting a medical secret by persons to whom they became known during training, performance of professional, official and other duties (i.e. not only by doctors) is not allowed, except for the cases established in Art. 61 Fundamentals of legislation on health protection. Therefore, it is more reasonable to use the term “medical confidentiality”.

From the analysis of current legislation it follows that medical secret(except for those already indicated) are:

Information about the artificial insemination and implantation of the embryo, as well as the identity of the donor (Part 3 of Article 35 of the Fundamentals of Health Protection Legislation);

Information about whether the citizen has a mental disorder, the facts of seeking psychiatric help and treatment in an institution providing such assistance, as well as other information about the condition mental health(Article 9 of the Law of the Russian Federation of July 2, 1992 No. 3185-1 “On psychiatric care and guarantees of the rights of citizens during its provision”);

Information about the donor and recipient for transplantation of human organs and (or) tissues (Article 14 of the Law of the Russian Federation of December 22, 1992 No. 4180-1 “On transplantation of human organs and (or) tissues”), etc.

Transfer of information constituting a medical (medical) secret to other citizens, including officials, is allowed only with the consent of the citizen or his legal representative in the interests of examining and treating the patient, for conducting scientific research, publishing in scientific literature, using this information in educational process and for other purposes.

Without the consent of a citizen or his legal representative, the provision of information constituting a medical secret is allowed only in following cases(Part 4 of Article 61 of the Fundamentals of Legislation on Health Protection):

1) for the purpose of examining and treating a citizen who is unable, due to his condition, to express his will;

2) if there is a threat of the spread of infectious diseases, mass poisonings and defeats;

3) at the request of the bodies of inquiry and investigation and the court in connection with an investigation or trial;

4) in the case of providing assistance to a minor under the age established by Part 2 of Art. 24 Fundamentals of legislation on health protection, to inform his parents or legal representatives;

5) if there are grounds to believe that harm to a citizen’s health was caused as a result of illegal actions;

6) for the purpose of conducting a military medical examination in the manner established by the regulations on military medical examination, approved by the authorized federal executive body.

Persons to whom, in accordance with the procedure established by law, information constituting medical confidentiality was transferred, along with medical and pharmaceutical workers taking into account the damage caused to the citizen, they bear disciplinary, administrative or criminal liability for the disclosure of medical confidentiality in accordance with the legislation of the Russian Federation and the legislation of the constituent entities of the Russian Federation.

Notarial secret

There is no legal definition of “notarial secret” in the legislation. Article 16 of the “Fundamentals of Legislation on Notaries” dated February 11, 1993 No. 4462-1 (hereinafter referred to as the Fundamentals of Legislation on Notaries), among the duties of a notary, is the obligation to keep secret information that has become known to him in connection with the implementation of his professional activities. Notarial secrecy also constitutes the secrecy of a will. In accordance with Art. 1123 Civil Code Before the opening of the inheritance, a Russian notary has no right to disclose information concerning the contents of the will, its execution, modification or cancellation.

It should be noted that officials (bodies local government and consular offices of the Russian Federation, ship captains, heads of expeditions, commanders military units etc.), endowed with the right to certify wills, translators, executors of the will, witnesses, citizens signing the will instead of the testator, are also required to keep the will secret.

At the request of the notary chamber, the notary is obliged to provide information about the notarial acts performed by him. In this case, the obligation to maintain the secrecy of notarial acts also rests with officials of the notarial chamber.

A notary can be released from the obligation to maintain notarial secrecy only by a court if a criminal case has been initiated against the notary in connection with the commission of a notarial act.

Obviously, in the performance of their duties, assistants and trainees can gain access to information that constitutes notarial secrets. In accordance with Art. 19 Fundamentals of legislation on notaries, the rights and obligations of an assistant and trainee notary are determined in the employment contract. At the same time, of interest is the absence in the Fundamentals of Legislation on Notaries of norms on the liability of an assistant and a trainee notary in case of violation of their duties. Such rules are provided only for the notary himself and the person temporarily performing his duties.

According to Art. 21 of the Fundamentals of Legislation on Notaries, in the event of damage caused by a person temporarily performing the duties of a notary, the damage will be compensated by the notary himself. The notary has the right to bring a recourse claim against the person performing his duties. Meanwhile, in Art. 5 of the Fundamentals of Legislation on Notaries, among the guarantees of notarial activity in relation to a notary, as well as persons working in a notary office, there is a prohibition to disclose information, read out documents that have become known to them in connection with the performance of notarial acts, including after resignation or dismissals.

A notary engaged in private practice bears full property liability for damage caused to the property of a citizen or legal entity as a result of the disclosure of information about notarial acts performed (Part 1 of Article 17 of the Fundamentals of Legislation on Notaries).

In case of violation of the secrecy of the will, the testator has the right to demand compensation for moral damage, as well as use other methods of protecting civil rights.

Notarial secret is a set of information obtained during the performance of a notarial act or contacting a notary interested person, including about the person, her property, personal property and non- property rights and responsibilities, etc.

The notary and the persons specified in Article 1 of this Law, as well as the notary trainee, are obliged to keep notarial secrets, even if their activities are limited to providing legal assistance or familiarization with documents and a notarial action or an action that is equivalent to a notarial one was not performed.

The obligation to maintain notarial secrecy also applies to persons who became aware of the notarial acts performed in connection with their performance official duties or other work, on persons involved in performing notarial acts as witnesses, and other persons who became aware of information constituting the subject of notarial secret.

Persons guilty of violating notarial secrecy are liable in the manner prescribed by law.

Certificates of notarial acts performed and copies of documents stored by the notary are issued by the notary exclusively to individuals and legal entities on whose behalf or in relation to whom notarial acts were performed. In the event of the death of a person or recognition of him as deceased, such certificates are issued to the heirs of the deceased. If a person is recognized as missing, the guardian appointed to protect the property of the missing person has the right to receive certificates of notarial acts performed, if this is necessary to preserve the property over which guardianship has been established.

Certificates of completed notarial acts and other documents are provided by the notary within ten working days as reasonable written request courts, prosecutors, investigative bodies and pre-trial investigation in connection with civil, economic, administrative or criminal cases, cases of administrative offenses being processed by these bodies, with the obligatory indication of the case number and annex official seal relevant authority

Certificates of the amount of notarized contracts, which are necessary solely to establish compliance with tax legislation, are provided by the notary within 10 working days upon a reasonable written request of the state tax service authorities.

An extract from the Inheritance Register regarding the existence of a completed will is issued only to the testator, and after the death of the testator - to any person who has presented a death certificate or other document confirming the death of the testator (one of the testators).

A notary has no right to testify as a witness regarding information constituting a notarial secret, except in cases where this is required by the persons on whose behalf or in relation to whom notarial acts were performed.

At the request of the Ministry of Justice of Ukraine, the Main Directorate of Justice of the Ministry of Justice of Ukraine in Autonomous Republic Crimea, the main departments of justice in the regions, the cities of Kyiv and Sevastopol, in order to regulate the organization of notarial activities, notaries issue signed copies of documents and extracts from them, as well as explanations from notaries within the period established by these bodies.

One of the types of secrets regulated by the current legislation of Ukraine is a notarial secret, which is defined as a set of information obtained during the performance of a notarial act or an appeal to a notary of an interested person, including information about the person, his property, personal property and moral rights and responsibilities, etc. (Part 1 of Article 8 of the Law of Ukraine “On Notaries”).

The concept of secret is revealed as something that is hidden from others; not known to everyone; secret1. At the same time, secrecy is considered as an individual’s right2; How statutory order3; as appropriate statements4 etc. Anyway general concept secrets, which is associated with the “concealment” of certain information and means that the information is “not known to everyone,” but only to a certain circle of people, underlies all types of secrets, taking into account the characteristics of each of them. Thus, the emergence, existence and cessation of any secret is often associated with the one who knows about the subject of the secret. This means that only the relevant persons have the right to have certain information. The purposes of concealing information may be different, but all types of secrets involve concealing certain information. Moreover, a secret is violated if the information constituting its subject goes beyond the boundaries of a certain circle of persons who have the right to own it. It is important to note that the legislative regulation of the protection of any secret is based on the fact that a person has certain rights and interests that may be violated as a result of the dissemination of certain information among an indefinite number of persons. Often this primarily concerns a person’s constitutional right to privacy, which is mentioned by M. V. Anchukova5. As I. V. Shatkovskaya rightly notes, one of the circumstances that actualizes the problem of studying the role and importance of information in the life of society and ensuring the rights, freedoms and legitimate interests of citizens is assistance in the exercise by individuals of their rights while minimizing the possibility of unlawful unauthorized dissemination of private information character6. It should be noted that it is the protection private information lies at the heart of many legally regulated secrets.

As follows from Part 1 of Art. 8 of the Law of Ukraine “On Notaries”, the subject of notarial secrets is certain information. Information can be considered as a summary, a list of some data, certain facts, data about someone, something. Information is also information. Thus, notarial secret includes information, that is, certain information, facts or data. G.I. Bashtega, revealing the issues of protecting notarial secrets, uses the expression “notarial information”. In our opinion, this formulation is incorrect. This is due to the fact that relations that relate to the subject of notarial secrets themselves do not necessarily relate to notarial activities, but often affect issues of a person’s personal life, his property, etc. Therefore, it is impossible to talk about the existence of such type of information as notarial information.

There is no doubt about the fact that notarial secrets are classified as professional secrets. In this aspect, it is also considered in the legal literature, namely, as one of the types of professional secrets. Professional secret is defined as a generalized name for information (mainly with limited access), which a person owns in connection with the performance of her professional activities and the disclosure of which is prohibited. In Ukraine, this includes information constituting legal, banking, medical, commercial, notary, official secret. I. B. Korol notes in this regard that for individual categories The legislation establishes the obligation of citizens to keep secret information about citizens that became known to them in connection with the performance of professional or official duties, that is, it is a professional (official) secret. V.V. Korol points out that professional secrets are secrets entrusted to representatives certain professions citizens in order to exercise (protect) their rights and legitimate interests1. According to M. V. Rudyk, professional secrecy is a separate block information relations, protection from unauthorized distribution of which is the direct responsibility of the subject in connection with the performance of professional functions. Thus, the basis of professional secrecy is the professional activity of a person. That is, information that constitutes the subject of professional secrets, obtained by a person precisely as a result of professional activities.

We have established that notarial activity is a professional activity exclusively of notaries, while other persons perform only certain types of notarial acts, but are not engaged in notarial activity (see commentary to Article 3 of the Law of Ukraine “On Notaries”). In this case, talk about notarial secret as on professional secrecy is advisable only in relation to notaries who receive relevant information in the process of carrying out professional activities, while other persons who perform certain types of notarial acts, as well as those persons who are involved in the performance of notarial acts (for example, witnesses) or are in custody. labor relations with a notary, etc., are required to maintain notarial secrecy in accordance with the provisions of Art. 8 of the Law of Ukraine “On Notaries”, but notarial secret is not their professional secret.

As follows from Part 1 of Art. 8 of the Law of Ukraine “On Notaries”, the relevant information constitutes the subject of notarial secret only if it was received in one of the following cases:

During the performance of a notarial act;

When contacting a notary.

According to parts 2 and 3 of Art. 8 of the Law of Ukraine “On Notaries”, the obligation to keep notarial secrets rests with:

Notary,

Officials of local government bodies (if these persons perform notarial acts);

Consular offices and diplomatic missions of Ukraine (in case of notarial acts);

Chief doctors, their deputies for medical affairs, doctors on duty at hospitals, hospitals, others inpatient institutions healthcare, homes for the elderly and disabled, heads of hospitals, directors or chief doctors of homes for the elderly and disabled (in the case of a notarial act);

Sea captains, river boats that fly the flag of Ukraine (in case of performing a notarial act);

Heads of search or other expeditions (in case of performing a notarial act);

Commanders (chiefs) of military units, formations, institutions, military educational institutions(in case of performing a notarial act);

Heads of penal institutions (in the case of a notarial act);

Heads of pre-trial detention centers (in case of performing a notarial act);

Notary trainee;

Persons who became aware of the notarial acts performed in connection with the performance of their official duties or other work;

Persons involved in performing notarial acts as witnesses;

Other persons who became aware of information constituting the subject of notarial secret.

It follows from the above that the obligation to maintain notarial secrecy extends to any persons who become aware of the relevant information. In part 2 art. 8 of the Law of Ukraine “On Notaries” establishes the obligation to keep notarial secrets, even if the person’s activities are limited to providing legal assistance or familiarization with documents and a notarial act or an act that is equivalent to a notarial one has not been performed.

So, after applying for a notarial act, the obligation to maintain notarial secrecy arises for any persons who become aware of the information that constitutes the subject of notarial secrecy.

In part 1 of Art. 8 of the Law of Ukraine “On Notaries” establishes that information that constitutes the subject of notarial secrets must be obtained either “during the performance of a notarial act” or “when contacting a notary.” It follows from this that notarial secrecy arises in the following cases:

Or an application for the performance of a notarial act by any person entitled to perform notarial acts;

Or contact a notary.

IN the latter case the law does not specifically specify the performance of a notarial act, so we can conclude that in the case of applying to a notary, notarial secrecy arises even in the case of applying for a notarial act (for example, providing consultations). In this case, notarial secrecy arises due to the performance by the notary of his professional responsibilities. At the same time, in Art. 5 of the same Law provides for the obligation of a notary to keep notarial secrets only regarding completed notarial actions, which, in turn, indicates the presence of contradictions in the norms of the law.

The competence of a notary is not limited to performing notarial acts, but also provides for other duties and powers. In particular, integral part notarial activity is the use electronic registers information system Ministry of Justice of Ukraine. Some of the registers are not open, and obtaining information from them is permitted only to a certain circle of persons. For example, according to Part 1, Clause 18 of the Temporary Order state registration transactions, an extract from this register is issued at the request of the parties to the transaction or their authorized persons. That is, the right to receive information from State Register transactions is provided only to the parties to the relevant transaction, who can make a request to the notary to issue them an extract from the register exclusively for the transaction in which they were directly involved. The right to receive an extract from the register of the court, prosecutor's office, internal affairs, state tax service, Security Service and other bodies is also provided. state power in connection with the exercise of their powers. It must be taken into account that the issuance of information from registers and most operations with existing entries in registers do not apply to notarial actions, an exhaustive list of which is established in Art. 34 of the Law of Ukraine "On Notaries". That is, when issuing an extract from the register, the notary does not perform a notarial act, but acts as a person who has technical feasibility carry out the corresponding operation in the registry (registrar). If we assume that notarial secrecy extends only to the performance of notarial acts, then in the case of providing information from registers, even if such information is not open, the notary would not be obliged to keep the information received secret, which could violate the legal rights and interests of the person . This allows us to conclude that it is quite fair to extend notarial secrecy not only to the performance of notarial acts by a notary, but also to the performance of other powers.

The key question is the question of the limits of notarial secrecy, or more precisely, whether this concept covers any appeal to a notary or are there certain exceptions? For example, a person approached a notary with a request to issue an extract from the register of ownership rights to real estate. The notary informed her that he did not have access to this register and advised her to contact the bureau authorities technical inventory and registration of ownership of objects real estate. At the same time, the person provided the notary with a title document for her apartment for review. In this situation, according to the author, notarial secrecy covers only the information set out in the legal document, since the content of the appeal to the notary is not related to the professional activities of the notary and is not within his competence. That is, only information obtained from a title document, in this case, constitutes the subject of notarial secret, because the desire to obtain an extract from the register of property rights is not related to the performance of one of the functions (powers) of a notary, and cannot entail an obligation to keep them secret . It seems legitimate that the notary’s obligation to keep notarial secrets comes precisely from his powers as a notary or his familiarization with information that may represent a notarial secret. Thus, the basis of any professional secret lies in the implementation of professional activities. In this case, the notary examined the title document, thus learning information about the person’s property, which, according to Part 1 of Art. 8 of the Law of Ukraine “On Notaries” constitutes a notarial secret if such information is received while contacting a notary. Thus, when contacting a notary, notarial secrecy arises only if the content of the appeal is related to the notary’s performance of his powers, and also if, during the appeal, the notary learned information that may constitute a notarial secret.

If several persons take part in the performance of a notarial act, the notarial secret has certain features. When certifying a contract, in addition to its contents, the notary may become aware Additional Information about each of the parties to the agreement, which is also the subject of notarial secrecy. In this case, notarial secrecy arises both in relation to the completed notarial act (certified agreement) and in relation to additional information about each of its parties (if such information may constitute the subject of notarial secret). Notarial secrecy about each of the parties to the transaction protects the information received by the notary from third parties and even from the other party to the same transaction. It is understood that within one notarial act, its participants are protected by notarial secrecy, even from each other, in relation to any information that does not relate to the notarial act performed by them. Those. notarial secrecy arises both in general in relation to the notarial act performed, and separately in relation to each subject of the notarial act. For example, each of the heirs within one inheritance case can lawfully learn only those information that relate to his right to inherit. Other information (in particular, about property status other heirs, etc.) is protected by notarial secret and is not subject to disclosure.

It is important to pay attention to the wording of the norm of Part 1 of Art. 8 of the Law of Ukraine "On Notaries". This provision establishes that notarial secrets are information obtained “during the performance of a notarial act or an application to a notary by an interested person, including about the person, his property, personal property and non-property rights and obligations, etc.” From this definition it follows that notarial secrecy does not necessarily concern the person who applied to the notary, but may concern any other person. Thus, when certifying the accuracy of a copy, a person can contact a notary with documents containing information about other persons (for example, title documents for real estate). That is, the emergence of notarial secrecy is associated not with the subject who applied to the notary, but with the content of the information that was obtained during such an appeal (that is, the subject of notarial secrecy). In relation to a person who has applied to a notary, a notarial secret arises in the context of the fact and content of its application, if such information may constitute a notarial secret. The latter means that an appeal to a notary must concern the notary’s performance of his powers, and also be lawful. According to Part 1 of Art. 51 of the Law of Ukraine “On Notaries”, a notary or an official performing notarial acts, if a violation of the law is detected during the performance of notarial acts, immediately reports it to the relevant law enforcement agencies for adoption necessary measures. Please note that this standard we're talking about specifically about the performance of notarial acts, but there is no indication of cases of contacting a notary on other issues. At the same time, according to the author, notarial secrecy cannot cover information relating to any violations of the law, both in the case of applying for a notarial act, and in the case of contacting a notary on other issues, since this would contradict the principles of the legality of notarial activities .

From the above it follows that the very fact of contacting a notary is part of the notarial secret only if the essence of the appeal is covered by the notarial secret. So, in the case of a person’s appeal to a notary on a matter that does not concern the notary’s performance of his powers, that is, it does not constitute the subject of notarial secrecy, the fact of the appeal is also not covered by notarial secrecy.

Thus, the peculiarity of the emergence of notarial secrecy is that, on the one hand, it arises from the moment of applying for a notarial act to any person who has the right to perform a notarial act, or from the moment of contacting a notary, and on the other hand, it arises directly related to the content of the appeal. As noted, the fact of appeal becomes a notarial secret only in the case when the essence of the appeal is the subject of a notarial secret. That is, the fact of the occurrence of a notarial secret is determined by the criterion of the content of the appeal. In this case, the moment when a secret arises is the disclosure of the content of the appeal, although if it occurs, the secret extends to the very fact of such appeal. At the same time, the relevant information is included in notarial secrets after they are communicated authorized person in the process of performing notarial acts or contacting a notary. That is, the content of the information is necessary, but not the only reason for the emergence of notarial secrecy.

Thus, notarial secrecy arises in the following cases:

Applying to an authorized person to perform notarial acts or contacting a notary;

From the above it follows that both specified conditions are equally necessary for the emergence of notarial secrecy. Thus, if the content of the appeal may be the subject of notarial secrecy, but the person applies for the performance of a notarial act to a notary and not to the person who has the right to perform a notarial act, then notarial secrecy does not arise, since such an appeal is not an appeal to the proper subject. Also, when a person addresses the proper subject, but with improper treatment, that is, the information presented cannot be included in the subject of notarial secret, then notarial secret does not arise. So, notarial secrecy is also associated with the subject.

As noted, the basis of any secret is the concealment of certain information, which means that such information should be “not known to everyone,” but only to a certain circle of people. Moreover, depending on the significance of the subject of the secret, some of them are regulated by law, while others remain secrets only formally, that is, at the everyday level, and are not protected by law. In the context of the issue under consideration, we are interested precisely in those secrets that are protected by law. The legislative establishment of the obligation to store relevant information makes it possible to classify it as the subject of a particular secret. That is, the existence of a secret is associated with the emergence of an obligation certain persons use the relevant information in a special manner, in particular, refrain from committing certain actions or perform actions adhering to defined by law procedures, etc. In this case, the obligation to keep information confidential is established on legislative level and provides for the availability obligated persons. Thus, a secret always exists within a certain circle of subjects who own the information that constitutes its subject, and are obliged to use it in the prescribed manner.

Predictions by the legislator of obligations regarding special order use of relevant information has certain reasons, because not all information is classified as secret. According to the author, such a basis is the importance (significance, value) of information and the possibility of causing harm to the rights and interests of individuals or legal entities or the state in case of their distribution among third parties. Moreover, the latter follows precisely from the importance (significance, value) of the subject of the secret. In other words, the greater the value of the protected information, the greater the harm its dissemination can cause, and therefore such information is subject to strict protection.

From the above it follows that the signs of a secret are:

A certain circle of obligated subjects (in respect of which there is an obligation to maintain secrecy);

The importance (significance, value) of information constituting the subject of a secret;

Possibility of harm to rights and legitimate interests any persons or state in case of dissemination of information to third parties;

Legal protection (i.e. protection of information constituting a secret by current legislation).

This general signs any secret regulated by law. Depending on the type of secret, these signs are filled with corresponding features determined by the specifics public relations one secret or another.

It should be noted that not all types of professional activities give rise to an obligation to keep professional secret. So, the latter arises only in connection with the implementation by a person special type professional activity, in the process of which the subject can obtain valuable information. Thus, the classification of any secret as professional secrets occurs on the basis of the presence of professional powers of a person, due to the implementation of which the latter has the opportunity to find out valuable information, constituting the subject of mystery. At the same time, the right to exercise related activities determines a person’s ability to obtain certain information. In other words, the lack of authority to carry out professional activities does not give rise to the status of an obligated subject.

As already indicated, notarial secret is a professional secret only of a notary, since only a notary is engaged in notarial activities, and other persons by law are granted the right only to perform certain types of notarial actions along with their main activities, or such persons learn about the subject of the secret in other cases, but not in connection with the performance of professional activities. In this context, the scope of notarial secrecy is different for the notary and for other persons.

Taking this into account, it is important to identify the following entities obliged to maintain notarial secrecy:

Notary;

Persons who are granted the right to perform certain types of notarial acts;

Persons involved in the performance of notarial acts;

Persons who learned about the subject of notarial secrets in connection with the performance of official duties or other work;

Other persons who became aware of information constituting the subject of notarial secret.

Thus, for a notary, the obligation to keep notarial secrets arises if he is contacted not only to perform notarial acts, but also on other issues, if the subject of the appeal concerns the execution of his powers.

For persons who are granted the right to perform certain types of notarial acts, such an obligation arises if they are approached exclusively for the performance of notarial acts, as well as for persons invited to participate in the performance of notarial acts - only if they are involved before the commission of the act.

If information that constitutes the subject of notarial secret is received by a person in the performance of his official duties (for example, if a notary provides such information at the request of the prosecutor's office), such person is obliged to keep the received information due to his official duties (that is, as an official secret in within the framework of the proceedings in the relevant case), as well as in accordance with the requirements of Art. 8 of the Law of Ukraine "On Notaries". Trainees and assistant notaries are required to observe notarial secrecy due to the requirements of the provisions of the Law of Ukraine “On Notaries”, but not as professional secrets.

Other persons who have somehow learned about information constituting the subject of notarial secret are also obliged not to disseminate it and keep it secret. For example, if a person has found a lost copy of a will, from the moment she becomes familiar with its contents, she is obliged to maintain notarial secrets and has no right to disseminate information regarding the fact of its certification, the testator, the contents of this transaction, etc.

So, notarial secrecy arises for any person in the event of receiving information related to the performance of notarial acts. A notary has an obligation to keep a notarial secret as a professional secret if he is contacted both regarding the performance of notarial acts and on other issues, if the subject of the appeal concerns the exercise of his powers as a notary, and also if in the process of contacting him he learns information , which may constitute a notarial secret (for example, in the case of inspection of certain documents).

Thus, the emergence of an obligation to keep notarial secrets in all of these entities is based on one or another connection with the performance of a notarial act. The notary has the obligation to keep notarial secrets due to his status as a notary, which in itself connects him with the implementation of notarial activities.

It follows from this that the obligation to maintain notarial secrecy arises for any person in the following cases:

The connection of the subject with the performance of notarial acts (that is, with the element of notarial activity);

Connections between the information received and the notarial act. The above can exist both in aggregate and separately.

A notary has such duties, except mentioned cases, also arises in the case of contacting him on issues related to his performance of powers other than the performance of notarial acts.

Thus, the existence of a notarial secret follows either from the content of the information for any persons), or from the powers of the obligated subject (for the notary and persons entitled to perform notarial acts). In this case, both information and powers related to notarial activities or its individual elements (meaning the performance of notarial acts).

In part 1 of Art. 8 of the Law of Ukraine “On Notaries” defines that notarial secret is a set of information obtained during the performance of a notarial act or an application to a notary by an interested person, including information about the person, his property, personal property and non-property rights and obligations, etc. . That is, the law defines notarial secret as certain information. We cannot agree with this definition based on the following.

The Law of Ukraine “On Notaries” uses such expressions as “keep notarial secrets”, “compliance with notarial secrets”, “violation of notarial secrets”. The first of them, namely “keep a notarial secret”, if the notarial secret is information, is justified, that is, it means “information”. Others in this case provide for “compliance with information” and “violation of information”, which is clearly not consistent with semantic meaning. So the following seems clear:

If notarial secrecy is information, then it is inappropriate to use expressions regarding “compliance” and “violation” of notarial secrecy;

If notarial secrecy is a certain process or procedure (which may involve its observance and violation), then Part 1 of Art. 8 of the Law of Ukraine “On Notaries” are formulated incorrectly. In this case, it is incorrect to use the expression “keep notarial secret”.

In the bills on amendments to the Law of Ukraine “On Notaries” (draft Law of Ukraine “On Amendments to the Law

Ukraine "On Notaries", introduced by People's Deputies of Ukraine V.V. Pisarenko (dedicated No. 249), There are. V. Korniychuk (dedicated No. 185), G. P. Knyazevich (dedicated No. 340), V. I. Potapov (dedicated No. 115), draft Law of Ukraine "On Notaries", introduced by people's deputies I. G. Berezhnaya (dedication 150), Yu. A. Karmazin (dedicated 389), S. G. Mishchenko (dedicated 232), draft Law of Ukraine "On Amendments to the Law of Ukraine "On Notaries", introduced people's deputy Ukraine Yu. G. Miroshnichenko (142), project of the Notary procedural code, introduced by People's Deputy of Ukraine I. G. Berezhnaya) is not proposed new edition definition of notarial secret.

Article 8 of the Law of Ukraine “On Notaries” also uses the following language constructs, as “information constituting the subject of notarial secret”, “information constituting a notarial secret”. Consequently, in this case, the information is considered by the legislator as an element of notarial secret, namely its subject. Information (i.e. information) that is included in the notarial secret is the object civil rights according to Art. 177 of the Civil Code of Ukraine, therefore it seems legitimate to consider them as its element, regarding which a notarial secret arises, that is, the subject. The impossibility of constructing the concept of notarial secret in the relevant information is also justified by the totality of its features that are inherent in secrets and which information cannot have. For example, the presence of a certain circle of subjects as a sign of any secret is also characteristic of notarial secrets, but cannot characterize information. At the same time, information (information) is something about which a secret arises, and their absence means the absence of a secret at all. Therefore, information (information) is necessary (mandatory) structural element notarial secret, namely its subject.

The essence of notarial secret as legal phenomenon, analysis of its main features and structure allows us to consider it as a type of social relations, namely legal relations. Legal relations are strong-willed social relations regulated by the norms of law, expressed in a specific connection between authorized and obligated subjects- carriers of subjective legal rights, duties, powers and responsibilities - and are provided by the state. Legal relations- these are relations in connection with law, based on law.

Pravozobov"The subjects of notarial secrecy are:

Notary;

Other persons entitled to perform notarial acts;

Notary trainee;

Persons involved in performing a notarial act;

Persons who have the right to request information that constitutes the subject of notarial secrets, persons exercising control over notarial activities;

Any other persons who have received certain information constituting the subject of notarial secret.

All these persons are united by a single duty to use special order information constituting the subject of notarial secret. Thus, each of these persons is obliged to: keep secret information that constitutes the subject of notarial secret; comply with the legal requirements of the eligible entity regarding specified information; bear legal liability in case of failure to comply or improper execution their responsibilities.

In case of violation of notarial secrecy by the person who initiated it, an obligation arises to bear legal responsibility by virtue of Art. 8 of the Law of Ukraine “On Notaries”, but due to the lack of sanctions for this offense in the current legislation, she actually cannot be held accountable. The absence of legal norms providing for sanctions for violation means the absence established type and measures of losses that must be suffered guilty person, which makes it impossible to punish her. It should be noted that Art. 12 of the Law of Ukraine “On Notaries” provides for disciplinary liability of a notary for violation of notarial secrecy in the form of revocation of a certificate of the right to engage in notarial activities (see commentary to Article 12 of the Law of Ukraine “On Notaries”). At the same time, the absence of standards for violation of notarial secrecy by other legal entities gives grounds to consider the level insufficient legal guarantees its compliance. This predetermines the need to amend the current legislation in the context of establishing legal liability for violation of notarial secrecy (see commentary to Article 27 of the Law of Ukraine “On Notaries”).

The following are recognized as subjects who have the right to receive information that constitutes the subject of notarial secret:

Individuals and legal entities on whose behalf or in relation to whom notarial acts were performed; in case of death of a person - her heirs; in case of recognition of a person as missing - the guardian of the property of such a person (considering that the legislation does not regulate on the basis of which the notary issues certificates and copies to the indicated persons, the practice of carrying out notarial procedures allows us to conclude that the latter must submit written statement on provision of copies and/or certificates in accordance);

Court, prosecutor's office, inquiry and pre-trial investigation bodies (submit a justified written request);

State tax authorities (a justified written request is submitted);

Ministry of Justice of Ukraine, Main Department of Justice of the Ministry of Justice of Ukraine in the Autonomous Republic of Crimea, main departments of justice in the regions, cities of Kyiv and Sevastopol (written request is submitted).

In the case of providing information that constitutes the subject of notarial secret, at the request or at the request of the above-mentioned persons, lawful use takes place. At the same time, it should be taken into account that the powers of these persons regarding the scope of obtaining such information are different, therefore the legal use of information that constitutes a secret subject must occur in accordance with the clear instructions of the law. For example, judicial institutions, law enforcement agencies certificates of notarial acts performed are provided upon written request, containing justification for the need to obtain the relevant information, indicating the case number and attaching the official seal. The absence of at least one of specified requirements law is a basis for refusal to provide information. Tax authorities have the right to receive information regarding the amount of notarized contracts, which is also carried out by them on the basis of a reasonable written request.

In part 8 of Art. 8 of the Law of Ukraine “On Notaries” defines the right of any person to receive an extract from the Inheritance Register in the event of the death of the testator. To obtain such a document, a person must present to the notary a death certificate or other document confirming the death of the testator. During the life of the latter, the extract from the Inheritance Register is issued only to the testator himself. This provision is also an element of notarial secrecy, since it ensures the preservation of information regarding the fact that a person has drawn up a will, its modification or cancellation. This allows you to adhere to another secret - the secret of the will, which exists within the limits of notarial secret.

In our opinion, the provision of Part 9 of Art. 8 of the Law of Ukraine “On Notaries”, which states that a notary does not have the right to testify as a witness regarding information constituting a notarial secret, except in cases where this is required by the persons on whose behalf or in relation to whom notarial acts were performed. Consequently, a notary can act as a witness only on the basis of a request from an authorized subject of notarial secrecy.

Taking into account the above, the lawful use of information that constitutes the subject of notarial secret can be defined as the transfer of such information by the proper subject, who legally received and owns it, to the proper third parties on a legal basis. In this case, the information that is transmitted can be transmitted orally, in writing, or presented on paper or other media, etc. An example of the lawful oral use of information may be an application by a person who drew up a power of attorney some time ago with a request to a notary to inform the date of its preparation. Written transmission of information is carried out, in particular, in the form of issuing certificates of completed notarial acts, and its transmission on appropriate media involves issuing copies or duplicates of documents from the archive, etc.

From the above it follows that the legality of the use of information is evidenced by a combination of several signs, namely:

Proper subject of information transfer;

The legality of his receipt and possession of information;

The legality of the grounds for its transfer to third parties;

The right of third parties to receive information.

The first two signs are interconnected and cannot exist separately from each other - only the subject who has received the relevant information and possesses it legally can act as appropriate. Lawfully obtaining information means the right to own it (storage). At the same time, the subject of the transfer of information must also have the right to use it (transfer it to other persons) either always (the authorized subject of notarial secret), or in cases determined by law (the legal subject of notarial secret). It seems obvious that the authorized subject uses the information that constitutes the subject of notarial secret, at its own discretion and without restrictions, that is, lawfully, with the exception of only those information that also concern other persons. Therefore, the person to whom the information concerns is also a subject. fair use information constituting the subject of notarial secret.

The legality of the grounds for transferring information to third parties means the existence legal requirement or an application for the provision of relevant information, drawn up in accordance with the requirements of current legislation, contains all details and necessary provisions, there are no erasures, additions, other unspecified corrections, etc. In addition, for individual subjects The law requires indication of the justification for the need to request this information.

One of key points lawful transfer of information is an application for its provision by the appropriate subject, i.e. such that has the right to receive this information. Article 8 of the Law of Ukraine “On Notaries” provides a list of such entities.

At the request of the Ministry of Justice of Ukraine, the Main Department of Justice of the Ministry of Justice of Ukraine in the Autonomous Republic of Crimea, the main departments of justice in the regions, the cities of Kyiv and Sevastopol, notaries issue:

Copies of documents signed by them;

Extracts from documents; explanations.

These authorities themselves establish the period within which the notary is obliged to provide the specified information. Copies of documents and explanations are required from the notary in order to regulate the organization of notarial activities, including verification of requests or complaints from citizens (see commentary to Article 33 of the Law of Ukraine “On Notaries”).

The law does not contain exhaustive list information constituting the subject of notarial secret, since their range is too wide. Notarial secrecy covers information set out in written documents, expressed orally, reflected in in electronic format etc.

In our opinion, the following information belongs to the subject of notarial secrecy:

About the fact of the appeal, its grounds;

Information contained in the documents presented for review;

In relation to persons who applied to a notary, as well as other persons whose information became known in connection with the application, their personal data, information about property, transactions they entered into or other documents, the presence or absence of certain obligations, etc.;

About the fact of performing a notarial act or the fact and grounds for refusal to perform it;

About the persons involved in the performance of the notarial act as witnesses, persons who signed the document instead of the person who performed the notarial act, etc., including the very fact of their participation in the execution of the notarial act;

Register number of the notarial act, date and time of application;

Information received by a notary in the process of performing notarial proceedings (for example, responses to requests from a notary, etc.), including information presented in electronic form;

About the amount of the fee for performing a notarial act, payment procedure, etc.

It should be noted that all secrets protect the rights and legitimate interests in different areas public life, and violation of any secret damages public relations that affect the personal or property rights and interests of a person, the need legal protection which are based on the principle enshrined in the Constitution of Ukraine of declaring a person the highest social value, or the rights and interests of society or the state, national interests. The subject of notarial secrecy also consists of information that is protected due to the fact that its dissemination could cause damage legal rights and the interests of individuals, legal entities or the state.

Having analyzed the current legislation regarding various types secrets, we can come to the conclusion that violation of any secret occurs through:

Illegal use of information;

Illegal obtaining of information;

Loss of information.

So, illegal use information (information), which constitutes the subject of a secret, can be expressed in the form of disclosure, transfer, sale, other distribution, copying of information, providing access to information to third parties; illegal receipt information is its collection or the commission of other actions, as a result of which the information comes into the possession of the person who commits these actions (for example, theft). In this case, copying information can be both a form of using information and a form of receiving it. Loss of information is the loss of documents or other media on which the relevant information is located. As a result of loss, information is removed from the possession of the person who is supposed to protect it.

The concept of secrecy can be defined as legal relations relating to the order (rules and procedures) of obtaining, storing and using information that constitutes its subject. Maintaining secrecy means maintaining established rules and procedures (order) for obtaining, storing and using information, which constitutes its subject, and violation is, accordingly, deviations from the specified rules and procedures (order).

It should be noted that all of the above misconduct or inaction have the consequence of familiarization with information that constitutes the subject of notarial secret, third (extraneous) persons. Eat. V. Seraya, revealing issues of violation bank secrecy, notes that illegality of familiarization means the absence of legal grounds for a person to become familiar with bank secrets, in particular the lack of consent of the owner of the secret area1. At the same time, the legislation of Ukraine on notaries and notarial activities does not provide for the provision of consent at all, but contains a rule that allows an eligible subject to require a notary to give testimony (Part 9 of Article 8 of the Law of Ukraine “On Notaries”).

Illegal use of information includes:

Their disclosure to third parties;

Any other form of their transfer to persons who do not have the right to receive them;

Copying this information for transfer to third parties;

Providing access to information to persons who do not have the right to receive it.

Illegal receipt of the specified information means:

Collection of information;

Theft of documents or other media containing information;

Performing any other actions as a result of which information comes into the possession of the person who performs these actions.

Loss of information includes:

Loss of documents or other media on which the above information is located.

It should be noted that each of these violations harms the legitimate rights and interests of individuals, legal entities or the state or creates a threat of causing such harm. It is important that violation of notarial secrecy can entail not only moral (non-property) but also property damage. For example, disclosure of information about the fact of concluding a contract for the purchase and sale of real estate, in particular, about the amount of sale of the real estate property, the time and place of the conclusion of the contract, may become the basis for committing a crime against property - theft, robbery, robbery to the person who received the contract cash, and so on. At the same time, the fact of violation of notarial secrecy negatively affects business reputation the notary himself, reduces the level of trust both in the notary and in the notary authorities as a whole.

Considering the above, we can come to the conclusion that notarial secrecy is intended to protect against criminal attacks not only the personal (family) life of a person from outside interference, but also other social relations - property and even life and health. This is its social importance (significance), and this is what predetermines the need for its existence as a separate type secrets The areas of human life and activity in which harm is caused by violation of notarial secrecy are varied: from social relations in the personal life of an individual or within a particular family to violations economic activity organization or individual-entrepreneur, causing harm to the life and health of an individual, etc. Thus, the meaning of notarial secrecy should not be considered within the framework of a specific notarial act or separate appeal to a notary, but much more broadly, taking into account the rights and legitimate interests of the persons that it is intended to protect. That is, the importance of notarial secrecy lies in the fact that its observance goes beyond the relationship of a notary or other person who has the right to perform notarial acts with the person who contacts him, and may concern those rights and interests that are not covered by this particular notarial act . As already noted, all types of secrets perform a security function to ensure the rights and legitimate interests of persons in various fields social relations, which differ depending on the type of secret. Notarial secrecy protects and protects the fundamental constitutional rights and freedom of man and citizen, the rights and legitimate interests of legal entities, as well as the state, from interference by third parties and, most importantly, from committing illegal acts, which is its direction of influence. Taking into account the above, we can conclude that the harm that can be caused by a violation of notarial secrecy is no less than that caused by a violation of another type of secret (for example, commercial or banking, etc.).

According to Part 1, Clause 8 of the Plenum Resolution Supreme Court Ukraine "On judicial practice in cases of complaints against notarial acts or refusal to perform them" when deciding on the validity of complaints, courts must proceed from the fact that notarial acts must be performed in strict accordance with the established for of this body or official competence and the procedure for their implementation, while not allowing deviations from specified order, as well as the formal cancellation of a notarial act, if these deviations did not affect its completion. In particular, a notarial act cannot be canceled solely on the grounds of non-observance of the secrecy of its execution, since according to Part 7 of Art. 8 of the Law of Ukraine “On Notaries”, the legal consequence of this violation is the attraction to established by law responsibility of the guilty officials.

The expression “a notarial act cannot be canceled only on the grounds of non-observance of the secrecy of its execution,” in our opinion, must be understood in such a way that if there are no violations in the procedure for performing a notarial act in the document that is the result of its commission, but If there is a failure to comply with the requirements of the law on notarial secrecy, such a notarial act is valid. That is, violation of notarial secrecy in itself is not a basis for the invalidity of a notarial act, but its violation entails another legal consequence- bringing the perpetrator to justice. Having analyzed the judicial practice on this issue, we can come to the conclusion that the courts in general quite consistently proceed from this position. Thus, transactions that are certified in violation of the notarial procedure or contain norms that contradict current legislation, in which the free will of the parties is not expressed, etc. and along with this, a notarial secret was initiated (Decision of Novoazovsky district court Donetsk region dated 06.08.2007 in case No. 2-45/07; Decision of the Snyatinsky District Court of the Ivano-Frankivsk Region dated February 22, 2010 in case No. 2-14/2010; Decision of the Novobugsky District Court of the Nikolaev Region dated March 20, 2009 in case No. 2-9/2009; Solution Court of Appeal Khmelnitsky region from 04.11.2010; Decision of the Irshavsky District Court of the Transcarpathian region dated March 4, 2008 in case No. 2-12/2008). At the same time, the decision of the Rivne District Court of the Rivne region dated November 16, 2009 in case No. 2-1001 / 09 was recognized invalid will only on grounds of violation of notarial secrecy during its certification. During the consideration of the case, it turned out that when the will was certified, in addition to the testator and the secretary of the village council (that is, the person who certified the will), third parties were present (the plaintiffs this case), which was recognized by the court as a violation of the procedure for certifying a will. In particular, the court drew attention to the fact that the plaintiffs were not present at the certification of the will on the basis of Part 7 of Article 1252 of the Civil Code of Ukraine (that is, as witnesses). Based on this, the court made reference to Part 1 of Art. 1257 of the Civil Code of Ukraine and came to the conclusion that the will was null and void. One can agree with this opinion, since the procedure for certifying wills presupposes the presence of only the testator and the person certifying the will, and also in certain cases witnesses and the person who signs the will instead of the testator. Consequently, if during its certification there is any other person present who does not act as a witness or does not sign the will instead of the testator, this is a violation of the procedure for his certification, which entails the nullity of the will. Considering transaction authentication as appropriate order regulated by the current legislation, we can conclude that failure by a notary or other person performing a notarial act to comply with the requirements for observing notarial secrecy when performing a notarial act, in particular, in the presence of third parties, is a violation of this order and is even capable of in some cases, influence the will of the person applying for a notarial act. In this case, the basis for the invalidity (nullity) of the transaction is a violation of the procedure for carrying out the notarial procedure. Along with this, violation of the order does not always entail the invalidity of the transaction. In particular, with regard to wills, the Civil Code of Ukraine contains special norm- part 1 art. 1257, according to which a will drawn up by a person who did not have the right to do so, as well as a will drawn up in violation of the requirements regarding its form and certification, is void. The nullity of other transactions or their parts is associated by the legislator with non-compliance with their form (Articles 547,719,981,1055,1059,1107, 1118 of the Civil Code of Ukraine), requirements for notarization (Articles 219, 220 of the Civil Code of Ukraine), restrictions or waiver of certain rights (Articles 27, 121,126, 249, 586, 698, 739,867,1008,1060, 1112, 1113, 1136, 1139,1142 of the Civil Code of Ukraine), availability certain conditions in the transaction (Articles 787, 1056 and 1061, 1122, 1157, 1307 of the Civil Code of Ukraine), the absence of certain details in the contract (Articles 247, 720 of the Civil Code of Ukraine), the contradiction of the transaction with the current legislation, the moral principles of society, public policy or the abolition of liability for damage caused (Articles 228, 614, 633, 661, 780, 1109, 1111,1137,1242 of the Civil Code of Ukraine), the execution of a transaction by a person outside its civil capacity or without the permission of the guardianship and trusteeship authority (Articles 221,224,226 of the Civil Code of Ukraine), failure of one of the parties to the transaction certain responsibilities(Article 989 of the Civil Code of Ukraine). As we can see, violation of the procedure for certifying a transaction is a condition for the worthlessness of the will due to the requirements of Part 1 of Art. 1257 of the Civil Code of Ukraine. It follows from this that in case of non-compliance with the notarial procedure when certifying other transactions, the latter are valid on the basis of the presumption of the legality of the transaction (Article 207 of the Civil Code of Ukraine).

It is important to pay attention to the fact that a violation of the procedure for certifying a transaction can only occur during the process of certifying it. From the foregoing it follows that violation of notarial secrecy during the certification of a will entails its nullity. If notarial procedure its certification occurred without violations, and a violation of secrecy took place after the certification of the transaction, then such a transaction cannot be declared invalid only on the grounds of non-compliance with notarial secrecy. Therefore, in this case, the time of violation of notarial secrecy is important, namely, during the performance of a notarial act or after its completion.

The above once again proves that notarial secrecy should be considered as part of the notarial process, as a separate component of notarial activity. That is, the obligation to maintain notarial secrecy is inextricably linked with notarial activities, the performance of a notarial act (that is, the performance certain powers notary) or receiving information that constitutes a secret, for other reasons, and arises automatically.

Analysis judicial practice shows that most often transactions are declared invalid on the grounds of several violations being committed simultaneously, including violations of notarial secrecy. In this case, the basis for the invalidity of the transaction is not the direct violation of notarial secrecy, but the lack of free expression of will, non-compliance with the requirements regarding the form of the transaction, etc. Thus, the fact of violation of notarial secrecy is usually not a basis for the invalidity of a transaction, but in combination with other violations indicates the presence of a deviation from established by law procedures for performing notarial acts. It is incorrect and unfair that the legislator currently does not adequately appreciate the importance of maintaining notarial secrecy and does not establish responsibility for its violation. Because of this, in practice there are many cases when, despite the fact that the fact of a violation is established in court hearing and is considered proven, the notary or other guilty person is not held accountable due to the absence of the necessary legal norm for this.

It should also be noted that regardless of whether a violation of the secrecy entails the invalidity of a particular transaction, such a violation damages the rights and legitimate interests of persons, since the content of the information that constitutes its subject is always associated with important social values which are protected by law.