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mention that, in the past, nullity was analyzed by applying the rule quod nullum
est, nullum producit effectum, meaning that a null act can’t cause any legal effect.
Subsequently, considering the idea according to which nullity is a legal means
by which legality is reestablished after it was violated when the act was concluded, the
thesis of the adequacy of the effects of nullity, in regard to the purpose of the law,
was established. According to this idea, only those effects which violate the law
must be removed, as the other effects of the law can be maintained. It was starting
with this conception that nullity was seen as partial and subject to remedy2.
In order to fully understand and apply nullity, we believe that it must be
limited by similar legal provisions, as the rescission and dissolution of the contract,
the caduceus character of the contract, the revoke or lack of publicity of the civil
legal act. If, in case of nullity, its cause is contemporary with the conclusion of the
act, in case of rescission or dissolution, the cause is the guilty non execution by one
of the parties, thus being subsequent to the conclusion of the civil act. The same
distinction is valid in case of caducity, as the ineffectiveness cause is subsequent to
the conclusion of the civil act and is independent form the will of the author. Thus,
whereas nullity entails a non valid judicial civil act, caducity entails a valid legal
act. In case of the lack of publicity, this institution is to be applied for not
performing a publicity operation subsequent to the valid conclusion of a legal act,
as it is not a cause which deprives the legal act of its effect and is contemporary
with its conclusion.
An analysis of the law which applies
Absolute nullity is that specific type of nullity which sanctions the disrespect,
when concluding a civil legal act, of a legal provision which protects a general
interest. The legal background of absolute nullity is article 1247 of the Civil Code,
but it is also regulated in numerous special legal texts, such as article 23 first
alignment of Law no 176/20103 regarding integrity in exercising public functions
Absolute nullity can be invoked by whomever has an interest according to
article 1247 first alignment; we must mention that, in the new regulation, invoking
2 Ghe. Beleiu, Romanian Civil Law, eighth revised and completed edition by M. Nicolae si P.
Trusca, Universul Juridic Publishing House, 2003, pages 215-216,
3 Published in the Official Bulletin of Romania no 621 of September 2nd 2010
4 Law no 176/2010, article 23
(1) In case of a conflict of interest, if they are connected to the situation of conflict, all legal or
administrative acts concluded, directly or through other people, with the violation of legal provisions
regarding conflict of interest, are subject to absolute nullity.
(1) The complaint for establishing absolute nullity of legal or administrative acts concluded with
the violation of legal obligations regarding conflict of interest can be filed by the agency even if the
person no longer holds that office.
(2) The court will rule on absolute nullity and the reinstating of parties in the previous situation.