Prethodno priopćenje
Non-contentious proceedings and the conciliatory function of notaries public – de lege lata and de lege ferenda
Mihajlo Dika
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
The role of notaries public presents a special problem in the process of the reassessment of the limits, needs and the necessity of out-of-court settlement of civil law protection conducted at legislative, professional and scientific levels in the Republic of Croatia. In this connection, the author first tries to establish to what extent cases under the traditional court jurisdiction (as a rule in non-contentious proceedings) have already been transferred de lege lata to notaries public and what are the possibilities and limits of further transfer of such cases. It is noted that notaries public have successfully taken on a number of cases in this field, especially those dealing with hereditary and distraint legal matters. In trying to identify cases which could de lege ferenda be assigned to notaries public (concurrently with courts), and assuming that the limits of such out-of-court settlements depend on the disposability of the above relationships and on the legal and political assessment that there is public interest that these legal matters should be settled by government bodies, one may conclude that, in principle, these matters might cover amicable divorces, non-contentious proceedings for securing evidence, non-contentious proceedings for settling relationships between co-owners including dissolution of co-ownership, settlement of boundary lines, voluntary sales, etc. In this connection, it is stressed that there is a need for a Croatian Law of non-contentious proceedings which would, among other things, provide appropriate solutions to court proceedings and possibly also to those conducted by notaries public on the above non-contentious matters. In considering the conciliatory dimension of the notary's traditional public functions as an alternative method of settling legal matters and as a way of settling matters out of court, it is noted that this is seen as a preventive, conciliatory function of the notary public, an adhesional conciliatory function, a conciliatory monitoring one and as the notary's conciliatory function stricto senso, which does not, however, exceed the limits of the notary's standard functions. When considering the possibilities and need for extending the role of notaries public in carrying out their conciliatory work, it is suggested that this problem needs to be approached cautiously in view of the consequences that the so-called conciliatory incompatibility might have on the exercise of this function.
Ključne riječi
out of court settlement; non-contentious proceedings; notary public; conciliation
Hrčak ID:
45426
URI
Datum izdavanja:
21.12.2009.
Posjeta: 3.549 *