Instrumento Público
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LIBNI JUAREZInstrumento Público
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LIBNI JUAREZCommon questions
Con tecnología de IAAn acta notarial is typically drafted on simple or bond paper and does not require numeration, whereas an escritura publica is documented in a protocol, which mandates a rigorous order of numbering and dating. In Guatemala, the protocol is used specifically for escrituras públicas, actas de protocolización, and legal reasons. The acta notarial records facts of presence and circumstances known to the notary by direct witnessing, while an escritura pública records juridical business and declarations of will .
Failure to maintain the order and integrity of the 'protocolo' system can have severe implications, including loss of legal credibility, challenges to the document's authenticity, and difficulties in legal enforcement. It may lead to disputes over the chronological sequence of legal acts, diminish trust in notarial certifications, and potentially result in legal nullification of documents. This could severely hinder the protection of parties' rights and affect juridical certainty .
'Fecha cierta' is a critical characteristic of public instruments, providing a definite date that helps ensure the document's authenticity, credibility, and enforceability. This legal certainty bolsters the instrument's ability to serve as pre-constructed evidence in juridical matters, offering unequivocal assurance to all parties involved regarding the document's legitimacy and the temporal context of the obligations or rights declared therein .
'Testigos' (witnesses) and 'intérpretes' (interpreters) serve as auxiliary roles in the preparation of public instruments. They become indispensable when the clarity or comprehension of an act requires additional validation or when language barriers exist. Witnesses can attest to the validity of the transactions or declarations made, while interpreters ensure that all parties fully understand the proceedings, which is particularly crucial in acts involving parties who speak different languages or dialects .
According to Fernández del Castillo, the structure of a public instrument includes the proemio, antecedentes, clausulado, representation, generales, certificaciones, and autorización. These elements establish the preamble, historical background, stipulations, representation, generalities, certifications needed, and authorization process, ensuring comprehensive coverage of both factual and formal requirements in documenting legal acts .
When preparing a 'Testimonio,' the notary provides a faithful copy of the primary document, including the acta de protocolización and legal reasons, intended for the interested party. Meanwhile, a 'Copia Simple Legalizada' involves creating a literal reproduction of the primary document, but it requires a fiscal stamp for each page used .
The 'valor probatorio' of notarial copies ensures that these documents are accepted as equivalent to the original in legal proceedings without requiring further authentication. This recognition simplifies juridical processes by relying on documented testimony and certified copies instead of presenting original instruments, thereby streamlining evidence submission and maintaining document integrity within formal legal frameworks .
In Guatemala, actas notariales are classified as: (1) De presencia, which confirm the reality of the facts that motivate their authorization; (2) De referencia, which document voluntary witness statements without affirming content veracity; (3) De requerimiento, used to record obligations for compliance; (4) De notificación, proving the notification to another party; and (5) De notoriedad, certifying notorious facts that underpin legal rights .
The 'protocolo' system serves to organize and preserve notarial acts in a structured, orderly manner, ensuring each document bears a specific number and date, crucial for chronologically maintaining legal records. This comprehensive archive facilitates traceability, authenticity, and security of juridical acts, which are essential for both present transactions and future reference in legal disputes or confirmations. The system supports the credibility and official status of public instruments .
In an acta notarial, 'rogación' does not involve a formal appearance but rather marks the expression of the interested party's request, relying on the notary to certify a particular fact. It emphasizes documenting the main fact desired by the requesting party rather than conducting a juridical act, which contrasts with an escritura pública where 'rogación' involves a formal appearance and execution of juridical business by the parties involved .
