Tipologia notarial en Costa Rica: la problemática del notario institucional

AutorRoxana Sanchez Boza
CargoAbogada en el Despacho Suarez y Sanchez. Notaria Pública. Catedrática de Derecho Civil. Universidad de Costa Rica y Universidad Latina

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Costa Rica is a founding country of the well known international union of notaries, which in the forties was called the latin notary union. the bar association of lawyers of costa rica was the representative entity of the members, and it still is.

Membership at u. i. n. l. was very serioussly analyzed from the notarial point of view exercised in our country. compaired to the anglo - saxon and soviet notary, our latin type of notary has always manifested itself as the private exercise of a public function. in some countries, a public notary, by law, is

Considered a public functionary, but in others like costa rica, he is placed within the munnera pubblica.

There are very important characteristics, such as imparcially exercising, when qualified juridic opinion is generated (which gives room to the autonomy of the public notary at the moment of giving notarial public faith). then the inquestionable profesional ethic when been considered a profesional , or as it happens in costa rica, where a notary is not a profesional nor a public functionary, and although that, he has to earn the title of lawyer of the tribunals of justice. except in consuls´ cases who are exempt of becoming lawyers, based on international treaties, like the one of vienna. another exeption is the one of the state notary, who, as a characteristic, is able to do all notarial activity required by the state (like adquisitions, expropriations, non appropriation) which are made at the state notary´s office, in the attorney general´s office.

Right now, there is an explossion of people graduated as ba in law as the result of the existance of private universities, in 1980. costa rica is a country with 5 million citizens, 23,000 lawyers. because of having an open type system of access to the notarial function, right now, there are 7,810 authorized notaries and from that amount 164 are called institutional lawyers. during the last five years, the state banking system and autonomus institutions have been giving them more than 80% of the notarial activity they generate.

In the year 2,000 the panorama changed when the constitutional chamber by means of vote 444, restated in votes 5417 – 2003 and 13672 – 20004, helped the juridic institutional notary image to be born. the notary´s image, known as public duty notary regimen, gave this essay the chance to inform the international notarial community about the advantages and menaces to its existance in other countries.

1- Notarial code proclaimed in 1998

After part of a costa rican group of notaries, very interested in a more adequate notarial legislation, had a long fight, under the influence of interested magestries and under law n° 7764, a new notarial legislation called notarial code, dated april 17th 1998, promulgated by a majority, was aprooved in a short duration case, and schedulled to start six months later that year, in november.

By means of the notarial code, public notaries´ function was better defined, and some public juridical intitutions were established, for example the national board of notaries was created, same as the jurisdictional tribunals in charged of taking care of violations to the notarial code and the juridical order that aticipates the participation of a public notary.

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2- Birth of national board of notaries

Organization function, control and vigilance of notaries in Costa Rica

Before the notarial code, the authorization to exercise notarial public faith was in the hands of the supreme court of justice second chamber of cassation. notaries´ disciplinary competency used to be sanction by a judicial court.

Once the said code was promulgated, the national office for notaries was born with instrumental legal capacity, and its competency was defined by article 21, which escencially establishes the functions of the organizational entity for notarial law, the control of exercising notarial law by means of inspecting and vigilating the notarial function.

The notarial law office, known as dnn, was born as a hybrid entity between the organization and the vigilance of the costa rican notarial function. these are separate entities in other countries members of uin, where the point is to authorice or not doing notarial function; also, in terms of supervision, like in colombia where there is a superintendency of notary offices, or in uruguay with the inspection of notaries in the judicial court.

DNN has multiple functions, project diversity allows notaries in our country to do public function, promoting authentication of documents going out of the country, registering them, sending or receiving them, supervising notaries´ behavior, proper or not, by keeping record of suspensions from dnn, notarial tribunals, and notaries´ violations to the national juridical order branches of civil or criminal law.

3- Requirements, prohibitions, impediments for exercising notarial public faith

The requirements to become and exercise public notary were better organized in the notarial code, considering that these requirements should be kept during the whole existance of the public faith.

Aside from notaries hired by the notarial office of the state, and the consuls named by the external affairs ministry, up to the year 2,000 there was no other type of notaries.

But given the experience of many public institutions, and above all state banks, where lawyers used to be lawyers and public notaries too, many collegues had to choose between being a lawyer and being a notary, since

According to cn´s article 4 part d): as long as they exercised a public job as public employees, according to the definition of public employee in the law of public administration, and as public notaries ( where according to cn´s first article), that is a public job. cn´s article 4, part d says:

“f) Those who work at any dependency of the public sector, including estructured ones according to organizational models of private law, where exercising external notarial job is prohibited.”

The national office for notaries, by constitutional order based on said votes, as directing entity of the matter, regulated the juridical nature and institutional notaries´ faculties on a series of dispositions proper of this subtype of notarial job, within the lines of excercising and controlling

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notarial services, called institutional notary job in chapter two, which defines itself the following way:

ARTICLE 25TH, CONCEPT. notary authorized to give services only to the estate, for a fixed remuneration, exclusive dedication, and subject to the regiment of public employees, subject to control, advertizing, requirements, prohibitions, impediments, and disciplinary regimen. he should monthly satisfy the guarantee fund and to use the mechanisms of security established by cn and those determined by DNN.

This type of notary has some advantage over the institutional notary: he does not have the obligation of keeping an office open to the public (his boss, the state, allows him the benefit) same as messenger service, cleaning service, office equipment, and even all fees for exercising his public faith paid: buying his book of deeds, paying dnn to authorice starting it, replacing folios, everything will be paid by the institution: delivering the book to the national archive, bindding, reparing folios, etc.3 to the extent that article 26th (prohibitions, impediments, limitations) includes all priviledges of exercising this subtype of notarial law, which says:

“The institutional notary has the obligation of serving, protocolizing, and out of protocolizing: from a public office, under prohibition of exercising notarial law privately and charging fees to the state: authorizing acts following lines exclusively related to the institution he works for“.

Extracted requirements from the notarial code are given in detail in the following article. the institutional notary has the obligation of fulfilling them in order to become entitled and start using his book of deeds.

ARTICLE 28TH. REQUIREMENTS. In order to be authorized as an institutional notary, the one with public faith, besides fulfiling with the requirements and criteria established by law , should fulfill with the following dispositions:

  1. Indicate what his position is within public administration.
    b. Proobe the existance or not of regimes of savings and loans enrolled in the public institution that do not correspond to its ordinary function.

  2. Describe his function as an institutional notary according to the job mannual, same as the fee for exclusive dedication or prohibition, which should be certified by correspondant authority.

  3. Internal control dispositions he is subject to by institutional order.
    e. Give office address from where he will be rending his services.
    f. Establish type of acts or contracts the institution he works for does.
    g. Identify specialized asessory functions the institution requires.
    h. Demonstrate the existance or not of regulations to stop the external exercise of the notary within the legal regimen of the institution.

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4- Juridic law modification in the notarial area Constitutional chamber´s vote 5417 - 2003. Institutional notary figure´s birth and consequences

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