Original scientific paper
Public Notaries as Members of Bodies of Legal Persons Performing Commercial Activities
Nina Tepeš
; Faculty of Law, University of Zagreb, Zagreb, Croatia
Abstract
According to the Notaries Public Act, while performing public notary services, a notary is not permitted to be a member of a body of a legal person performing a commercial activity. Being primarily a reflection of the independence and impartiality principles, this rule is particularly important for the overall functioning of public notaries. Consequently, the said prohibition is analysed from the perspective of public trust attributed to the public notary service. The analysis takes into account numerous terminological inconsistencies within the Notaries Public Act, justifying the need for a teleological interpretation of the relevant legal provisions. In addition, the paper makes a distinction between the legal persons that perform commercial activities and have bodies (in public limited and limited liability companies those bodies are the General Meeting, Management Board and Supervisory Board), and the legal persons that also perform commercial activities but do not have bodies (typically, those will be unlimited partnership and limited partnership). Although a grammatical interpretation of the Notaries Public Act would indicate that the above mentioned prohibition does not apply to the latter category, it is suggested that such an interpretation should not be adopted. The analysis therefore takes a functional approach, showing that a public notary's affiliation with a so-called personal company can also, depending on the circumstances, bring into question the level of public trust associated with the public notary service.
Keywords
public notaries; independence and impartiality of public notaries; commercial activity; bodies of legal persons
Hrčak ID:
109709
URI
Publication date:
6.5.2013.
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