30 may 2019

Title: The notarial right in Ecuador. Notarial intervention in family law.

Author: Jaime Rafael Espinoza Cabrera

Following the approval of the Constitution of the Republic of Ecuador of the year 2008 and the General Code of Processes of 2015, Ecuador has witnessed profound changes in the judicial system. The legislator, in order to affirm the oral system and decongest the courts of procedures born from the voluntary jurisdiction, has determined that the majority of these attributions that contain acts from the voluntary jurisdiction are known and served exclusively by the notaries of the country.

The project consists of three chapters, in the first one an approach is made to the common concepts of the Latin notary collective, with the adaptations that the Ecuadorian system itself has acquired since the issuance of the first Notarial Law in 1966.

The work describes in a general way the basic concepts and main and competencies of the notary in Ecuador, which are determined in the aforementioned Notarial Law, General Organic Code of Processes, Organic Code of Judicial Function, Civil Code and other bodies of law.

Regarding the notarial function, the work specifies the requirements, opposition, admission, periods of permanence, temporary absence and the figure of the deputy notary, protocol storage and protection, clarifying the Ecuadorian reality with the legislations of Argentina, Chile, Mexico, Colombia, countries that have developed the notarial theme in greater depth.

The second chapter called “Notary Administration” studies the notary not as a public notary who prints in his actions security, publicity and authenticity but as an officer who must fulfill a series of administrative obligations.

In principle, the notary is a legal professional who, within the state organigram, is classified as a judicial officer because he is an integral part of the auxiliary body of the Judicial Function and who, in delegation of the State, provides a public service and, given the complexity of its nature, has diverse obligations that can be summarized in three fields:

• With their workers, since by provision of the Law they are considered private workers subject to the Labor Code under the dependency of the public notary;
• With certain state institutions as an informant of tax, economic and personal movements in order to contribute to the prevention of behaviors financed by money laundering; and,
• the most delicate obligation that refers to the contribution of participation to the State. As stated above, the State, being the holder of the public faith, receives a percentage of participation of the gross income that must be deposited on the first ten days of the month, under penalty of sanctions by the Judicial Council, which is the organ that governs and controls the notary collective.

The third chapter introduces us to the field of family law and the concepts of voluntary jurisdiction. Therefore, the notary has the exclusive competence to know the procedures by common agreement concerning the institutions of the Registered Partnerships, Divorce, Dissolution and Liquidation of the Community Property or the Assets.

The work addresses the precedents, historical evolution of the transfer of these powers to the notarial level, the requirements and procedures at this headquarters and particularly studies the possible impact on the right to free access to justice.

The project ends with the conclusions and possible measures to improve the notarial service that are summarized as follows:

• Development of a new Notarial Code updating archaic institutions and making feasible the issuance of a manual of procedures that improves the notarial computer system.
• Creation of an ethical standard that characterizes and sanctions unethical conducts.
• Creation of an agency that acquits notary inquiries and is a Law generator, solving antinomies and correcting anomies in notarial matters.
• Review of participation to the State in the sense that taxation principles are applied, especially that of progressivity.