Problems of notary application international legislation in the process of international heredity
Journal Title: Правова держава. Щорічник наукових праць (Pravova derzhava) - Year 2017, Vol 28, Issue
Abstract
In modern legal practice of the notarial execution proceedings involving foreign persons is becoming more common. Virtually all proceedings, where foreign element is present, notaries use foreign law in one or another way. In legal literature – both national and foreign – emerging research on the problems to determine the content and application of foreign law. At the same time many questions are left unsolved: the application of foreign law, the establishment of its content by notaries under international succession process, indicating the urgency of the problem, the solution of which is impossible without theoretical understanding and ensuring systematic review of international law and internal aspects of cooperation in establishing the content of foreign law. The article is devoted to one of the actual problems of private international law, arising under notary hereditary productions with a foreign element – the issue of the application of foreign law by a notary in the international process of inheritance. The article identified and disclosed the specific features of the application of the rules of private international law, to which the author refers a number of enforcement widely used in law as a basis of conflict rates, foreign law, provisions of international treaties, as well as a special sequence of application of the rules of private international law and the uniqueness of normative conflicts. The author concluded that application of foreign law through its official interpretation, the practice of application and doctrine in the foreign country (i.e. based on application of foreign law in accordance with principles of the legal system to which they belong), notary pursues one goal – to build a notary probate procedure with a foreign element as it would be built in a foreign country. Therefore, in a situation where the notary faces with a need to use foreign law, a number of rules of national law on notary procedures cannot be applied, at least in its entirety. Thus, when applying foreign law, a notary acts under the peculiar procedural analogy each time. Thus, separation of legal systems of different countries on the method of application of foreign law, that is the attitude of the national legal system to foreign law as a «fact» or as a «law» can only be arbitrary. In the application of foreign law a problem of so-called reservation of public order can arise. Such clause is usually contained in the form of legal norms in the legislation of a particular state, meaning that given the content of certain provisions of a foreign law that the foreign law, which refers to the conflict, rules do not apply. The author analyzes main methods of establishing of foreign law in the international process of inheritance by the notary, and determines the important role of the Ministry of Justice in ensuring notaries information on foreign law. In the conclusions the author proposes to amend current legislation of Ukraine.
Authors and Affiliations
Tetiana Khorosha
Keywords
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