Eduvest - Journal of Universal Studies Volume 4 Number
08, August, 2024 p- ISSN 2775-3735- e-ISSN 2775-3727 |
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RESPONSIBILITIES OF A NOTARY PUBLIC VIOLATING THE CODE OF
ETHICS BASED ON DECISION NUMBER 501/PDT/2020/PT.DKI AND DECISION NUMBER 294 K/TUN/2021 |
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1,2
Universitas
Tarumanagara, Indonesia Email: : [email protected], [email protected] |
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ABSTRACT |
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Notary is a public
official who in its implementation makes an authentic deed where the
authentic deed when made by a Notary is legally valid and can be used as a
valid means of proof in the event of a dispute. Regulations related to
Notaries have been regulated in Law Number 2 of 2014 Amendment to Law Number
30 of 2004 concerning Notary Offices. Notaries in carrying out their
positions must also comply with the Notary Code of Ethics. As an example of a
case taken in this author regarding a Tangerang city Notary named Muhammad
Irsan was dishonorably dismissed because he signed outside his area of office
and did not provide copies of the deed to the confronters. This type of
research uses normative legal research with descriptive analysis.� Secondary data used is through interviews,
journals, books and laws and regulations.�
The results of the research are 1) The responsibility of the Notary in
providing a copy of the deed to the visitors lies in Article 54 paragraph (1)
of the Notary Position Law and 2) is a legal remedy that can be made by the
visitors if the Notary violates his code of ethics, namely reporting or filing
a lawsuit to the MPPN (Notary Central Supervisory Council). The confronters
are entitled to their rights including the provision of copies of the deed
from the Notary in accordance with Article 54 paragraph (1) of the UUJN. |
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KEYWORDS |
Responsibility,
Tangerang City Notary, Failure to Provide Copy of Deed, Attendants |
This work is licensed under a Creative
Commons Attribution-ShareAlike 4.0 International |
������������������������������������������������� INTRODUCTION
Notary is a public official who is the only
authorized to make authentic deeds regarding all acts, agreements and
stipulations required by those concerned to be stated in an authentic deed,
guarantee the certainty of the date, keep the deed and provide a grosse, copy and excerpt, all insofar as the making
of the deed by a general regulation is not also assigned or excluded to another
official or person, �while in
Law Number 2 of 2014 concerning amendments to Law Number 30 of 2004 concerning
Notary Position Article 1 point 1 states that Notary is a public official
authorized to make authentic deeds and other authorities as referred to in this
law.
Notaries in carrying out their obligations must get
protection in order to achieve legal certainty, so that the deeds made by
notaries must have legal certainty for the parties concerned, besides that
notaries are a profession where their position or position is very honorable
and has a very noble task.
According to Boris Kozolchyk,
"A notary public is an official of integrity appointed by state
government to serve the public as an impartial witness in performing a variety
of official fraud deterrent acts related to the signing of important documents."
The meaning of the sentence when translated into Indonesian is "Notary
public is an official of integrity appointed by the state government to serve
the public as an impartial witness in performing a variety of fraud deterrent
acts related to the signing of important documents (Junaedi et al., 2023).
A notary in carrying out his duties to make
authentic deeds, is obliged to carry out the obligations and provisions in the
UUJN (Notary Position Law). Notaries are required to act honestly, carefully,
independently, impartially, and safeguard the interests of the parties involved
in legal acts, in accordance with Article 16 of the UUJN. Therefore, notaries
must act carefully and meticulously in carrying out procedures to make
authentic deeds.
The definition of an authentic deed in 1868 of the
Civil Code, an authentic deed is a deed in the form prescribed by law, made by
or before public servants authorized to do so in the place where the deed is
made. The notary in this case then keeps the deed as a deed minute which is
part of the notary protocol. The definition of an authentic deed theoretically
is a letter or deed that was originally deliberately officially made for proof
if one day a dispute occurs, dogmatically according to positive law authentic
deeds are found in the Civil Code Article 1868, Het Herziene
Indonesisch Reglement (HIR)
Article 165, and 285 RBg, an authentic deed is a deed
whose form is determined by law and made by or before an official authorized to
make such deeds.
Legal protection of Notaries in carrying out their
duties and authorities for the implementation of service functions and the
achievement of legal certainty in providing services to the public, has been
regulated and outlined in a separate law, namely Law Number 30 of 2004
concerning Notary Offices, which law has undergone changes with the
promulgation of Law Number 2 of 2014 concerning Amendments to Law Number 30 of
2004.
The establishment of the Notary Position Law, then
the supervisor to oversee all the duties and positions of Notary is regulated
in Article 67 of Law No. 2 of 2014 concerning Notary Position which states that
"supervision of notaries is carried out by the Minister". In carrying
out this supervision, the Minister forms a Supervisory Council.
�In Law
Number 2 of 2014 amending Law Number 30 of 2004 concerning the Notary Position,
the Notary Supervisory Council is a body that has the obligation or authority
to carry out supervision and guidance of Notaries. There are 3 (three) Notary
Supervisory Councils, consisting of the Regional Supervisory Council (MPW),
Regional Supervisory Council (MPD), and Central Supervisory Council. The
Regional Supervisory Assembly is an organization or body specifically assigned
the task of supervising and fostering Notaries at the district/city level. The
Regional Supervisory Assembly (MPW) is an organization or body specifically
assigned the task of supervising and fostering Notaries at the provincial
level.
Notary is an office or profession which has a code
of ethics. According to the Big Indonesian Dictionary (KBBI): "a code of
ethics is a norm or principle accepted by certain groups as a basis for behavior."
According to Abdulkadir Muhammad, a professional
code of ethics is a norm or principle that can be accepted by a group of
professions, then directs or instructs other members how to behave and ensures
professional morals in society.
Notaries in carrying out their obligations there
are violations or violate the law or who experience negligence can be followed
up, if there are parties who feel aggrieved can make complaints to the Notary
Supervisory Panel and the Police. Notaries who violate or neglect their duties
or obligations in carrying out their positions and violate the Constitution of
the Republic of Indonesia Number 30 of 2004 concerning the Position of Notary
and other applicable laws and regulations, the Notary Supervisory Council is
able to take firm action and impose sanctions, as well as provide
recommendations to the Minister of Law and Human Rights to revoke the license
of the offending Notary.
One example of a case is contained in the DKI
Jakarta High Court Decision Number 501/PDT/2020/PT.DKI, namely Muhammad Irsan, S.H., he is a Notary who concurrently holds an
office in Tangerang City, where he is an appellant who was originally the
Plaintiff who had received a decision letter from the Notary Central
Supervisory Panel dated December 24, 2018 that he was dishonorably
dismissed by the Notary Central Supervisory Panel.
The Notary Examining Panel of Banten Province has
obtained facts that Muhammad Irsan, S.H., as a
Notary, has made Deed of Sale and Purchase Engagement number 31 on June 23,
2017, Deed of Sale and Purchase Engagement number 34 on June 23, 2017, Deed of
Power of Attorney to Sell number 32 on June 23, 2017, Deed of Power of Attorney
to Sell number 35 on June 23, 2017 which was signed at Pantai Indah Kapuk (PIK) North Jakarta and the parties were not in the
same room and also he did not provide a copy of the deed to the
complainant/parties.
The problem raised in this research is the
responsibility of a notary who does not provide a copy of the deed to the
confronters and the legal remedies that the confronters can take to obtain a
copy of the deed, referring to the DKI Jakarta High Court Decision number
501/PDT/2020/PT.DKI. The purpose of this research is to find out how the
notary's responsibility in the case and the legal steps that can be taken by
the injured party. This research is expected to provide a theoretical
contribution to legal science, especially in the field of notarial
responsibility. Practically, the results of this research are expected to be
useful for notaries in understanding their obligations in providing copies of
deeds. The conceptual framework of the research includes several main concepts,
namely responsibility which includes conscious and earnest actions, the
definition of notary according to KBBI, provisions regarding the provision of
copies of deeds under the Law, and the definition of copies of deeds according
to Law Number 30 Year 2004. Based on the above
problems, this research is entitled, "Responsibility Of
Notary Of Tangerang City By Not Giving A Copy Of The Date To The
Plaintiff".
RESEARCH
METHOD
This research uses normative legal research, which according to Soerjono involves reviewing library materials or secondary
data, as well as interviews. This research is descriptive, describing and
explaining the facts or characteristics of the object systematically. The
research approach used includes a statutory approach to review regulations
related to legal issues, a conceptual approach based on legal expert opinions,
and a case approach. Data collection techniques are carried out through
document studies with content analysis. The data used is secondary data or
library materials, including primary legal materials such as the 1945
Constitution, the Civil Code, and Law Number 2 of 2014. Secondary legal
materials include research results and legal works, as well as tertiary legal
materials such as dictionaries. The data analysis technique applied is
qualitative analysis to produce analytical descriptive data based on written or
oral statements from respondents.
RESULT AND DISCUSSION
Obligation of Tangerang
City Notary in Providing Copies of Deed to the Attendants
Before
a copy of the deed is issued, the minutes of the deed must first be signed by
the parties, witnesses and the notary. The minutes of the deed must be made
precisely because if not, the notary is considered not careful in carrying out
his duties. An authentic deed is a deed made by authorized officials, including
notaries, and must be in accordance with applicable laws and regulations.
Article 165 HIR explains that an authentic deed is complete evidence between
the parties and their heirs.
After
the authentic deed is made and signed, the notary is obliged to keep the
minutes of the deed in a special place and maintain its confidentiality
according to Article 16 letter (f) UUUJN. The notary must make an authentic
deed based on facts and direct testimony from the parties, and witness it
himself with witnesses. Then, a copy of the deed is made from the minutes of
the deed that has been signed and must be in accordance with the minutes of the
deed.
Article
54 of the UUJN states that notaries can only provide copies of deeds to
interested parties, heirs, or those who acquire rights, unless otherwise
regulated by laws and regulations. If notaries do not fulfill
this obligation, they may be subject to criminal or civil sanctions. An example
of a notary code of ethics violation case in Tangerang City is Muhammad Irsan, S.H., who was dishonorably
dismissed for not providing copies of the deed to the parties and signing the
deed in an improper location.
The
research included interviews with several interviewees, including Mr. Soeprapto, a notary in Central Jakarta, who emphasized that
notaries are obliged to provide a copy of the deed to the relevant party in
accordance with Article 54 paragraph (1) of UUJN. If the notary forgets to
provide a copy of the deed, the relevant party can request it or report to the
Central Supervisory Council of Notaries (MPPN). Notaries must also report deeds
made every month to the Ministry of Law and Human Rights through an online
website.
Ms.
Tjempaka, a lecturer from Tarumanagara
University, in her email interview, emphasized the importance of providing
copies of deeds to relevant parties in accordance with Article 54 paragraph (1)
of UUJN-P. She also stated that at the beginning of each month, notaries are
required to report the deed to the Ministry of Law and Human Rights. If
notaries unintentionally violate the code of ethics, they must report to the
MPD with self-awareness.
If
the notary fails to provide a copy of the deed, then the action must be studied
as to why it occurred and adjusted to Article 54 paragraph (1) of UUJN-P.
Notaries must keep all deed-related information confidential unless otherwise
regulated by law. If negligent, the notary may be subject to sanctions in the
form of a written warning, temporary dismissal, or dishonorable
dismissal.
In
carrying out his/her position, a notary is obliged to act trustworthy, honest,
careful, independent, impartial, and safeguard the interests of the parties
involved in legal acts. If said to be negligent in making an authentic deed,
the notary has the right to prove that the deed made is in accordance with
Article 38 of UUJN and Article 54 paragraph (1) of UUJN-P.
Notary Sanctions in the Form of Dismissal for
Violation of the Code of Ethics Specifically in Not Providing Copies of Deeds
to the Attendants
This
research also invited Mr. Muhammad Irsan's attorney,
Mr. Halim Darmawan. He is the attorney of Mr. Muhammad Irsan
and also concurrently serves as a lecturer and rector of Pramita University
Tangerang. In conducting the interview process, I went to the Tangerang
District Court because he also served as a mediator judge.����
He
said that a Notary can sign in the office or outside the office based on the
agreement of the parties who do not object. After the Notary's draft called
minuta is given first to the parties to be read then
a Notary clarifies in the draft that has been made the intent and
purpose of the parties. A Notary / PPAT (Land Deed Official) based on the
decision of the Ministry of National Land Agency, PPAT (Land Deed Official) /
Notary works in the sub-district area covering the scope of the district / city
outside the area is not allowed. A Notary / PPAT (Land Deed Official) in making
an authentic deed, namely a Sale and Purchase Deed / Sale and Purchase Binding
Agreement / Power of Sale and others needed by parties who want to bind
themselves based on the Bond Law.
He
said that if a Notary cannot accept files without the presence of the parties
called figures with the form of documents submitted to the Notary, but
must be examined or checked first to their respective agencies, for example KTP
(Identity Card) is scanned and must be checked first to the dukcapil (Population and Civil Registration Office), KK
(Family Card) must be checked to the local village, the marriage certificate or
marriage book must also be checked back to the respective agencies so that it
can be accounted for later.
He
said that Mr. Muhammad Irsan, S.H as a Notary, had
been dismissed from his position by the Ministry of Law and Human Rights of the
Republic of Indonesia dishonorably and there was an appointment of a Notary
protocol holder to Susanty Surjani Raden, S.H., M.Kn, a Notary covering the area
in Tangerang City. In the cassation decision number 294 K/TUN/2021, the appeal
that had been submitted by the Ministry of Law and Human Rights of the Republic
of Indonesia was rejected.
He
said that if the MPPN (Central Supervisory Council of Notaries) with MPD
(Regional Supervisory Council) when there are people claiming (form of
complaint), they as supervisors of Notaries who are the arms of the Ministry of
Law and Human Rights of the Republic of Indonesia, then a Notary is summoned to
be examined in a code of ethics not dismissed. MPPN and MPD cannot dismiss
unilaterally because they are only an arm of the Ministry of Law and Human
Rights of the Republic of Indonesia and not a final decision, so Mr. Muhammad Irsan and his attorney, Halim Darmawan, filed a lawsuit
because the MPPN and MPD's extension to the Ministry of Law and Human Rights is
a beschikking, which is a one-sided legal
action, so they filed a lawsuit and lost.�
Problem Analysis
Notary's Responsibility for Not Providing a Copy of
the Deed to the Attendants
Notary
is a public official authorized to make authentic deeds regarding certain acts,
agreements, and stipulations. Based on Law Number 2 Year 2014, Notary must
guarantee the certainty of date, keep the deed, and provide the grosse, copy, and excerpt. In addition, Notaries are
responsible for carrying out their duties in accordance with legal provisions
and maintaining their integrity as witnesses in the signing of important
documents.
In
carrying out their duties, Notaries must act honestly, carefully, independently
and impartially. They are obliged to draft an authentic deed based on true
facts and ensure that the deed becomes valid evidence in the eyes of the law.
The authentic deed must be made in accordance with the law, and the deed
minutes (original deed) must be kept safely as part of the Notary protocol.
According
to Article 1 point 8 of the UUJN, the minutes of the deed are the original deed
that includes the signatures of the relevant parties, witnesses, and Notary. A
copy of the deed is a printout of the deed minutes that must be given to
interested parties. The content of the deed copy must be exactly the same as
the deed minutes, even though it does not include the signature of the signing
party.
Article
54 of the UUJN states that Notaries can only give, show, or disclose the
contents of the deed to interested parties, heirs, or people who acquire
rights. If Notaries fail to carry out this obligation, they may be subject to
sanctions such as written warnings, temporary dismissal, or dishonorable
discharge.
The
case of Muhammad Irsan, S.H., a Notary in Tangerang
City, shows a violation of the code of ethics and law for not providing a copy
of the deed to the relevant parties. In this case, he also signed the deed
outside his area of office, which is a serious violation.
The
theory of legal certainty according to Sudikno Mertokusumo and Kelsen emphasizes that the law must be
carried out clearly and the applicable norms must be adhered to by the public
and legal practitioners. Notaries must carry out their obligations in
accordance with the UUJN to ensure legal certainty and protect the rights of
interested parties.
In
the event of a violation by a Notary, the aggrieved party can report to the
Notary Supervisory Council (MPN). MPN is tasked with supervising and
sanctioning Notaries who violate the code of ethics or the law. Legal protection
for Notaries and the public is guaranteed by law to create justice and legal
certainty.
Jan
Michiel Otto defines legal certainty as a state in which there are concrete,
clear, and recognized rules by the state, as well as state institutions that
create and obey the rule of law. Citizens, including legal practitioners such
as Notaries, must adjust their behavior to these
rules. Article 67 paragraph (2) of UUJN stipulates that MPN and MPD are
supervisors for Notaries who are sent by the Minister of Law and Human Rights
of the Republic of Indonesia.
The
theory of responsibility according to Titik Triwulan states that responsibility must have a legal basis
that allows a person to sue others, and in turn gives birth to a legal
obligation for those who are sued to take responsibility for their actions. A
Notary should not accept documents without the presence of the relevant parties
and must verify the documents to the relevant agencies so that they can be
accounted for.
Abdulkadir
Muhammad divides tort liability into three: liability for intentional acts,
liability for negligence, and strict liability. The case of Muhammad Irsan, S.H who was dismissed for violation of the code of
ethics illustrates these three types of liability, especially for signing
outside the area of office and failure to provide copies of deeds to interested
parties.
Philipus
M. Hardjon states that the principle of legal
protection for the people against government actions rests on the recognition
and protection of human rights. MPPN and MPD play a role in examining
violations of the Notary code of ethics and cannot dismiss Notaries unilaterally.
MPPN and MPD are an extension of the Ministry of Law and Human Rights and can
only provide recommendations, not a final decision.
Satjito
Rahardjo added that legal protection involves the distribution of power to
individuals to protect their interests. If there is a violation by the Notary,
the aggrieved party can report to the MPPN or MPD. The theory of legal
protection according to CST Kansil emphasizes that
law enforcement officials must provide a sense of security against interference
or threats from any party.
A
lecturer from Tarumanagara University, Ms. Tjempaka, stated that legal certainty is when the law is
executed and the decision can be implemented. Notaries must provide copies of
deeds to interested parties in accordance with Article 54 paragraph (1) of
UUJN-P. Kelsen's theory of legal certainty also supports that the rule of law
must be obeyed by the community, including Notaries who must comply with the
UUJN in carrying out their duties.
Utrecht
argues that legal certainty means the existence of general rules, which allow
individuals to know what they can and cannot do. Notaries must comply with the
UUJN which requires them to provide copies of deeds to interested parties. In
carrying out their duties, Notaries must be honest, trustworthy, and safeguard
the interests of the parties involved in legal acts.
Legal
certainty according to Jan Michiel Otto includes three main aspects: clear and
recognized rules, institutions that create and enforce those rules, and
citizens' compliance with the rules. Notaries must report deeds made every
month to the Ministry of Law and Human Rights. Notary's responsibilities
include making authentic deeds and providing copies of deeds to interested
parties, and negligence in this regard can be sanctioned according to Article
54 paragraph (2) of UUJN.
According
to the theory of legal protection, when Notaries are negligent in making
authentic deeds, they have the right to prove that the deeds made are in
accordance with legal provisions. Legal protection creates order and security,
and allows individuals to enjoy their dignity as human beings. Notaries must
maintain the confidentiality of deeds made and provide copies of deeds in
accordance with the provisions of the UUJN.
Legal Efforts of the Attendants to Obtain a Copy of
the Deed Based on the Decision of the DKI Jakarta High Court number
501/PDT/2020/PT.DKI
Basically,
the Notary in carrying out the duties of his position is to make an authentic
deed. Notaries must comply with the laws and regulations
such as one example must comply with the Notary Position Law. Notaries
in their position must be honest and trustworthy in making an authentic deed. According
to Article 1868 of the Civil Code, "An authentic deed is a deed made in
the form prescribed by law by or before a public official authorized to do so
at the place where the deed is made." �An authentic deed is a deed made in the form
prescribed by law by or before a public official authorized to do so at the
place where the deed is made. According to the Big Indonesian Dictionary
(KBBI), a deed is a letter of evidence regarding a statement about a legal
event prepared according to statutory regulations and authorized by an
official.
There
are two types of notarial deeds: Akta Partij (Parties) and Akta Relaas (Minutes). Partij deeds
are made at the request of the relevant parties and contain their statements.
An example of this is the Akta Pengikatan
Jual Beli (PPBJ). Akta Relaas
is made by a notary based on things he hears or sees, such as the minutes of a
meeting (RUPS) of a company. A copy of the deed is a printout of the deed
minutes that must be given to the parties after the deed is read. The content
of the deed copy must be the same as the deed minuta,
even if the signature is not included in the copy.
Notaries
must comply with laws and regulations and the decisions of the Indonesian
Notary Association (INI), which supervises and fosters notaries to maintain
integrity. According to Sudikno Mertokusumo's
theory of legal certainty, the law must be implemented and enforced so that
everyone who is entitled by law can obtain their rights. Article 54 paragraph
(1) of the UUJN stipulates that notaries are obliged to provide copies of deeds
to the parties, and the copies do not have to be reported to the MPPN or MPD.
According
to Kelsen's theory of legal certainty, legal norms must be adhered to by
society. If notaries do not provide copies of deeds, they should be reported to
the MPPN and re-examined. Utrecht adds that legal rules are general and should
be known by everyone. Parties who do not get a copy of the deed can file a
lawsuit by using a power of attorney.
Jan
Michiel Otto defines legal certainty as the existence of rules that are clear,
consistent, and recognized by the state. The government and citizens must
adjust their behavior to these rules. Parties who do
not get a copy of the deed from the notary can report to the MPPN. Judges must
apply the rule of law consistently in resolving legal disputes.
The
theory of responsibility according to Titik Triwulan states that responsibility must be based on the
law, thus enabling a person to hold others accountable for their actions.
Notaries must be responsible for making deeds and providing copies of deeds to
the parties. Abdulkadir Muhammad divides responsibility in unlawful acts into
three: intentional, negligence, and absolute. Notaries who do not provide
copies of deeds can be reported to the MPPN and subject to sanctions.
Philipus
M. Hardjon states that the principle of legal
protection for the people rests on the recognition and protection of human
rights. If the notary does not provide a copy of the deed after several
requests, the parties can report to the MPPN for legal protection. Satjito Rahardjo added that legal protection involves the
distribution of power to protect individual interests. Aggrieved parties can
report to the MPPN or MPD. CST Kansil stated that law
enforcement officers must provide a sense of security from interference and
threats.
The
case of notary Muhammad Irsan, S.H., who was
dismissed by the Ministry of Law and Human Rights for violating the code of
ethics, shows the importance of compliance with legal regulations. The theory
of legal certainty according to Kelsen and Utrecht supports that the law must
be obeyed, and notaries must be responsible for the deeds they make. Parties
who feel aggrieved can report to the MPPN to obtain justice and legal
protection.
CONCLUSION
Notary's Responsibility for
Not Providing a Copy of Deed to the Attendants
�� Notaries are public officials or long hands of
the government in making an authentic deed in which the Notaries in carrying
out their duties and positions must comply with the Notary Position Law.
Notaries in carrying out their positions must comply with the Notary Position
Law.
A copy � of the deed is a copy in
which there is a sentence containing the phrase "given as a COPY with the
same meaning" at the end of the deed. The copy of the deed that has been
printed by the Notary must be in accordance with the minutes of the deed /
original deed that has been signed by the faces, witnesses, and also the
Notary.
�� The responsibility if the Notary
does not provide a copy of the deed is contained in Article 54 paragraph (1) of
the UUJN, which basically means that the Notary is obliged to provide a copy of
the deed to the relevant faces.
Legal Efforts of the
Attendants to Obtain a Copy of the Deed Based on the Decision of the DKI
Jakarta High Court number 501/PDT/2020/PT.DKI
Legal remedies that can be taken if the Notary does not provide a copy of
the deed are if one of the confrontants has followed
the Notary's procedure in providing a copy of the deed, but the Notary
concerned still does not provide it, then one of the parties who feel aggrieved
can report or file a lawsuit to the MPPN (Central Supervisory Assembly of
Notaries). After the parties report the Notary to the MPPN, the MPPN will
examine the Notary for violations of the code of ethics.
Suggestions for
Notaries If Notaries Do Not Provide Copies of Deeds to the Attendants
�� Notaries as a long arm of
the government also in making an authentic deed must be more obedient to the
laws and regulations, especially in the Notary Position Law. Notaries must
provide a copy of the deed to the relevant confrontants.
Legal efforts that can be made by the visitors
if the Notary violates his code of ethics are reporting or filing a lawsuit to
the MPPN (Central Supervisory Council of Notaries). The confronters are
entitled to their rights including the provision of copies of the deed from the
Notary in accordance with Article 54 paragraph (1) of the UUJN.
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