Introduction > Topics for discussion

Non-obvious notarial profession

JUDr. Martin Krčma 12. 2. 2016

If we consider the status and standard of the notarial profession in the Czech Republic in comparison with the European notarial practice, we must inevitably come to the conclusion that its role in the Czech legal order has been for a long time underestimated, factual contents often haphazard, often of marginal up to servicing importance, and expectations for the future uncertain. In this context to my mind comes the statement of the philosopher professor Václav Bělohradský about the non-obviousness of the Czech State. These words can be also applied to the notarial profession in the Czech Republic which also appears as non-obvious. As the notarial profession is a limb of the state, derives from the state, and exercised its powers, therefore also suffers from its infirmities.

By his statement Mr. Professor Bělohradský evaluates not only the manner of establishment of Czechoslovakia in the year 1918, but especially its next developmental periods. The fact was that the First Czechoslovak Republic did not manage to create a state nation of citizens of Czechoslovakia, but only an arena of many political parties with widely diversified relationships to the state. For historical reasons of various types (status of national minorities, anti-Austrian sentiment, etc.) the State became for most of the citizens an alien public administration, and neither other historical periods changed much in this respect. The State shows unstable structure till this day by its problematic setting of values of the community, as well as political atmosphere. Before the year 1989, we have experienced the relationship to the state under the motto “who fails to rip off the state, rips off his family“. The post-November* return to the so much admired First Czechoslovak Republic means return to the described problems. Thus today, the interest of the political parties is significant, and the interest of the state, if it is inconsistent, must wait.  

Recently, the relationship of the state and the judiciary was nicely described in the Czech Television by Mr. Dr. Baxa. The state is pushing to reform the judiciary, but at the same time puts political obstacles. None of the ministers – politicians can afford to introduce a long-term truly substantive conception of judiciary reform, because the topic is firstly professionally specialized. However, its factual content is limited by political influence of its (law)makers. And political influence lasting one election period, maximally two election periods, is for meaningful reform of the judiciary too short. Nationwide political agreement on the reform of the judiciary is still too far to the Czech State.

The notarial profession, as the part of the judiciary, suffers from the same disease. The determinant of strengthening or further direction of notarial powers surely cannot be a political party, but only those who are entitled to create and at the same time professionally capable of creating a long-term conception of functioning judiciary. And this can be, if the said conditions are met, only the state. But on the other hand the state may come to the conclusion that the notarial profession is not necessary at all, and that the judiciary can manage without it.

I think that the state and the notarial profession are very similar in our country. Both these institutes exist, somehow operate, and this leads in principle to the satisfaction of all.  

Adopting the New Civil Code, and its accompanying regulations, again opened the debate on the powers of the notaries contained therein. The notarial community was waiting for the New Civil Code eagerly with hope that the return to the legal culture of the continental law („quasi ABGB or BGB“) will be for it the return to the principles of the notarial profession. Happened that the number of legal situations in which the notary is in accordance with the New Civil Code involved in one way or other considerably expanded. In recent months, also the possibility of direct entries into the commercial register to be made by the notaries was added.

But is this really about the empowerment of the notarial profession, or is it only clogging of the law with „insensible“ or „servicing“ notarial acts?

If the notarial profession should help the judiciary, and carry out really meaningful preventive function of a guardian of the rule of law (ombudsman sui generis) then it is expected that the state will have necessary knowledge about the sense of existence and the role of the notarial profession. With regard to what I said above, I incline to the conclusion that it had not for a long time and even has not today. It seems that notaries do not have a partner to talk to about the tasks of the Czech notarial profession.

On the other hand, it is necessary to admit self-critically that even today´s notarial profession is not arranged in such a manner to devote to the mission of the notarial profession on theoretical level, and to offer its conclusions to the state. It is also due to the fact that the notarial profession does not educates personalities of academic standard which would be capable of conducting equal not only professional, but also political discussion with civil rights theorists. Just the internal debate within the notarial community and possibility of growth of its members is the prerequisite for promoting the mentioned topics. Long-term policy of the management of the notarial profession limited such internal discussion, and considered as success, if the notaries were not mentioned in the mass media in negative sense.

From the European perspective, the Czech notarial profession lags and does not approach the practice performed in the countries of traditional continental law. I am just saying my opinion, and I am saying it reluctantly. However, I have the possibility of comparison. When looking at a Czech notary an impression prevails that he/she is overwhelmed by all sorts of powers which give him/her social status, as well as economic independence. The truth is that only in part. Some powers of the notaries are hardly understandable (e.g. a notarial deed to comply with the new legal rule – the Act on Business Corporations, notarial deeds of minutes of meetings of associations of house units owners, or formation of sole founder limited liability companies for ready-made firms), which “burden” more or less the notaries, but what is worse that even in those meaningful (enforceable notarial deeds, documents concerning legal negotiations, testaments, legalizations) is actually disappearing their inner sense. To confirm these words I refer to the decision of the Supreme Court of the Czech Republic with reference number 29 Cdo 3919/2014, which fully in accordance with the valid applicable legislation puts the notary into the role of only an authenticator of the identity of a party of a legal act. Nothing about the responsibility for the content of the instrument being drafted, nothing about the impartiality and independence. I do not mean by that that everything in the notarial profession is wrong. I say that the notaries are more and more burdened by trivial administrative activities to the harm of the professional documentary agenda.     

The meaning of existence of the notarial profession is drafting public documents which by their manner of preparing, as well as archiving of originals, assist the judiciary in preventing lawsuits. The task of the notary is to fix the legal relations by the process of their drafting in such a manner to be in possible contentious proceedings hardly deniable. Notaries in Europe are regarded as impartial and independent judges of non-contentious law, therefore their close links with the justice system. But how can be regarded a notary in our republic who in documentary agenda after 22 years achieved the position of impartial and independent authenticator of identities?

Finally, I would like to react to the concerns of our Minister of Justice, Mr. Pelikán, that due to current practice the notaries could become extremely expensive secretaries (AD NOTAM 2/2015). I think that in many cases they have already become, only the state did not notice that.

Since last year, the notaries have new management. „Young Guns jumped into the saddles“. There is no reason to believe that can be started discussions about how the notaries can consistently and meaningfully contribute to strengthening the position of the Czech judiciary. I want to believe that also the new management of the Ministry will positively favour and incline to such discussions.

Promise for the future is also the position of the Czech notarial profession on international level. The recent honours of the highest official of the Czech notarial community from the Austrian Chamber of Notaries is evidence that Latin notaries in Europe, as well as outside Europe, do not loose interest in us, and in case of need they are able to contribute with advice and support. Regardless of what the current level of the notarial profession in our country is.

Prague, August 2015
JUDr. Martin Krčma

* after the Velvet Revolution which took the place from 17th November 1989