RESPONSIBILITY OF STATE REGISTRARS OF REAL RIGHTS TO REAL ESTATE AND LEGAL ENTITIES
The state registrar is an official acting on behalf of the state, represents his interests and is vested with authority to make the relevant entries in the register. The state registrar in the case of making illegal decisions bears disciplinary, civil, administrative or criminal liability in the manner prescribed by law.
Damage caused by a state registrar to a natural or legal person in the performance of its duties is subject to compensation based on a decision of the court, which entered into legal force, in the manner prescribed by law.
Article 64 of the Law of Ukraine “On Public Service” (hereinafter – the Law) stipulates that non-fulfillment or improper fulfillment of official duties defined by this Law and other regulatory acts in the field of public service, job description, and violation of ethical conduct rules and other violation of official discipline a public servant is brought to disciplinary responsibility in the manner prescribed by this Law.
The basis for bringing a state registrar, as a public servant, to disciplinary responsibility is the commission of a disciplinary offense, that is, an unlawful guilty act or omission or a decision, consists in non-fulfillment or improper performance by the public servant of his official duties and other requirements established by this Law and other regulatory legal acts for which a disciplinary sanction may be applied to it.
One of the following types of disciplinary action is applied to state registrars, as civil servants: a remark; rebuke; warning of incomplete service compliance; dismissal of public service.
If a civil servant, that is, a state registrar of a disciplinary offense provided for by clause 6 of part two of Article 65 of the Law, is permitted, the subject of appointment or the head of the civil service may restrict himself to a remark.
In case of violations, within the framework of consideration of complaints in the field of state registration, committed by the state registrar during state registration, the Main Territorial Department of Justice and the Ministry of Justice of Ukraine in accordance with subparagraphs d), e), e) of paragraph 2) of part 6 of article 37 of the Law Of Ukraine “On state registration of rights to immovable property and their encumbrances” and in accordance with subparagraphs d), e), e) clause 2) of part 6 of article 34 of the Law of Ukraine “On state registration of legal entities, individuals-entrepreneurs and public formations ”can decide on temporary blocking of access, cancellation of access to the State Register of Rights, sent to the High Qualification Commission of the notary at the Ministry of Justice of Ukraine submission on cancellation of the certificate on the right to engage in notarial activities (in case of violations of state notary registrar).
Civil liability is the purpose of damages, which should be understood as real damage and loss of profits. Real losses represent losses that a person has incurred in connection with the destruction or damage of a thing, as well as expenses that a person has made or must make to restore his violated right. Loss of profits is the income that a person could actually receive under normal circumstances, if his right had not been violated.
According to the first part of Article 1172 of the Civil Code of Ukraine, a legal entity compensates for the harm caused by their employee in the performance of his labor (official) duties.
Part one of Article 1174 of the Civil Code of Ukraine establishes that harm caused to an individual or legal entity by illegal decisions, actions or omissions of an official or officer of a state authority, authority of the Autonomous Republic of Crimea or a local government in the exercise of its powers, shall be reimbursed by the State, Autonomous Republic of Crimea or local government regardless of the guilt of the person.
According to Part 2 of Article 28 of the Law of Ukraine “On Notariate”, the state is not responsible for the harm caused by unlawful actions of a private notary when he performs notarial activities as a state registrar of real estate rights.
Article 16611 of the Administrative Code specifies the grounds for bringing the state registrar to administrative responsibility, namely: 1) for violation of the deadlines for the state registration of a legal entity, an individual entrepreneur or a public entity; 2) on the request of non-statutory documents for state registration; 3) for violation of the procedure for forwarding registration files of legal entities and individuals – entrepreneurs by mail; 4) for violation of the procedure for storage of registration files of legal entities and individuals – entrepreneurs.
The complaints commission draws up an administrative offense report and sends it to the court. If the court, when considering a case, establishes an administrative offense, then based on the results of the consideration of the case, a decision is made to impose an administrative penalty in the form of a fine.
If we proceed from the size of the non-taxable minimum income of citizens (17 UAH.), Then the amount of the fine will be from 3400 UAH. up to 8500 UAH
Similar amounts of fine are provided for in Article 16623 of KUOAP for violation of the procedure for state registration of rights to immovable property and their encumbrances.
Criminal liability of state registrars, as civil servants, is provided for in sections XV “Crimes against the authority of state authorities, local governments, associations of citizens and crimes against journalists” and-XVIII “Crimes in the sphere of professional activities and professional activities related to the provision of public services” Criminal Code of Ukraine.
The contents of criminal offenses of state registrars are disclosed in articles 358 (“Falsification of documents, seals, stamps and forms, sales or use of forged documents, seals, stamps”), articles 364 (“Abuse of power or official position”), articles 3652 (“Abuse of power by persons which provide public services “), Article 367 (” Official negligence “) of the Criminal Code of Ukraine.
If the commission, when considering complaints, sees in actions or omissions of state registrars, subjects of state registration, signs of a criminal offense, then it sends the appropriate submission to the law enforcement agencies.
Author: Anatoly Perepelchenko