This conclusion was reached by the Grand Chamber of the Supreme Court in Resolution No. 910/10374/17 of 21 September 2021.
In accordance with the provisions of Article 18 of the Civil Code of Ukraine, a notary protects civil rights by affixing an enforcement clause to a debt instrument in the cases and in the manner prescribed by law.
In accordance with Article 87 of the Law of Ukraine ‘On the Notarial System’, in order to recover sums of money or to reclaim property from a debtor, notaries issue enforcement orders on documents establishing the debt. The list of documents on the basis of which debt recovery is carried out in an undisputed manner on the basis of enforcement orders is established by the Cabinet of Ministers of Ukraine.
On 26 November 2014, the Cabinet of Ministers of Ukraine issued Resolution No. 662 amending the list of documents on the basis of which debt recovery is carried out in a non-contentious procedure pursuant to notarial enforcement orders. However, the Kyiv Administrative Court of Appeal, in its ruling of 22 February 2017 in case No. 826/20084/14, declared the aforementioned Resolution No. 662 unlawful and invalid insofar as in particular, the addition of the section ‘Debt recovery on grounds arising from credit relations’ to the List of Documents.
By a ruling of the Higher Administrative Court of Ukraine dated 1 November 2017, the decision of the Kyiv Administrative Court of Appeal dated 22 February 2017 in case No. 826/20084/14 was upheld.
In accordance with paragraphs 8 and 11 of Article 171 of the Code of Administrative Procedure of Ukraine, as in force prior to 15 December 2017, a court may declare a regulatory act unlawful or inconsistent with a legal act of higher legal force, either in its entirety or in part. Article 255 of the Code of Administrative Procedure of Ukraine provides that a court ruling or order that has entered into force is binding on the parties to the case, their successors in title, as well as on all bodies, enterprises, institutions and organisations, officials or civil servants, and other natural persons, and is enforceable throughout the territory of Ukraine.
Consequently, Resolution No. 662, which amended the List of Documents permitting notaries to issue enforcement endorsements on credit agreements that had not been notarised, and which came into force on 10 December 2014, ceased to have effect (in part) on 22 February 2017 with the entry into force of the ruling of the Kyiv Administrative Court of Appeal in case No. 826/20084/14.
A similar position is set out in the ruling of the Civil Cassation Court within the Supreme Court of 15 April 2020 in case No. 158/2157/17, in which, in particular, the court noted: ‘The contested enforcement order was drawn up by a notary on 27 March 2017, that is, after the ruling of the Kyiv Administrative Court of Appeal of 22 February 2017 in case No. 826/20084/14 came into force. The loan agreement concluded between the bank and the claimant, which was submitted to the notary for the execution of the enforcement clause, was not notarised, therefore there are grounds for declaring the notary’s enforcement clause unenforceable due to non-compliance with the conditions for executing the enforcement clause regarding the submission by the claimant of documents confirming the debtor’s undisputed debt”.
Consequently, a notary’s failure to comply with the requirements set out in Articles 87 and 88 of the Law of Ukraine ‘On the Notarial System’ and the List of Documents constitutes an independent and sufficient ground for declaring the enforcement clause unenforceable.
Read the text of the resolution – https://reyestr.court.gov.ua/Review/100428590
