NOTARY PUBLIC AS AN OBLIGATED INSTITUTION WITHIN THE MEANING OF THE ACT ON COUNTERACTING MONEY LAUNDERING AND FINANCING OF TERRORISM (DISCUSSION ON SELECTED ISSUES)
Abstract
There is no doubt that notaries should be one of the obligated institutions within the meaning of Act on Counteracting Money Laundering and Financing Terrorism. The tasks imposed on the obligated institutions are not limited only to reporting certain information, but they also include taking preventive actions that make it impossible to commit an offense under article 165a or 299 of the Criminal Code. Such a task also rests with notaries in regard to their status based not only on IV DAML and the 1 March 2018 Act on Counteracting Money Laundering and Financing Terrorism but also on the final of the FATF guidelines. The 1 March 2018 Act on Counteracting Money Laundering and Financing Terrorism has adopted a more rational model of cooperation between notaries and the General Inspector (subject/subject) in relation to the previous solutions. Granting a power of attorney by a current notary to a person employed in a law firm without the rights of a notary public, e.g. an employee (without the right to perform notarial activities) does not exempt from the duties and liability of the notary himself on the basis of the 1 March 2018 Act on Counteracting Money Laundering and Financing Terrorism finance regulations. To the contrary, the problems of responsibility and duties remain based on the action of the appointed notary’s deputy in the absence of a notary public. Thus, one should consider whether the scope of being an obligated institution should not extend to the deputy notary as well, since this occupation owns and exercises a number of powers identical to the activities of the notary himself and in a unique situation (article 21-1 the Law on Notarial), it operates „like a notary public”. This issue, due to the lack of national option, should be in compliance with EU regulations.
Keywords:
notary, deputy notary, notary office, obligated institution, counteracting money laundering, counteracting the financing of terrorismReferences
Holocher J., Bezpieczeństwo obrotu prawno-finansowego. Obowiązki notariusza w świetle ustawy o przeciwdziałaniu praniu pieniędzy oraz finansowaniu terroryzmu, Kwartalnik Prawa Publicznego 2015, t. 13, nr 2.
Maj K., Obowiązki notariusza w nowej ustawie o przeciwdziałaniu praniu pieniędzy i finansowaniu terroryzmu, Krakowski Przegląd Notarialny 2018, t. 3, nr 1.
Netografia
https://e-konsultantprawny.pl/pl/wiki/page/przystapienie-nowego-partnera-do-spolki-partnerski/ [dostęp: 4.03.2019 r.].
https://www.infor.pl/prawo/encyklopedia-prawa/s/272157,Spolka-partnerska. html [dostęp: 4.03.2019 r.].
Public Consultation on the Draft Risk-Based Approach Guidance for Legal Professionals, Accountants and Trust and Company Service Providers, oficjalna strona FATF: https://www.fatf-gafi.org/publications/fatfgeneral /documents/public-consultation-guidance-tcsp.html [dostęp: 2.04.2019 r.].
Studziński W., Przystąpienie do spółki cywilnej, https://mojafirma.infor.pl/spolki/spolki/spolka-cywilna/691532,Przystapienie-do-spolki-cywilnej.html [dostęp: 20.03.2019 r.].
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