4. Prezumţia de bună-credinţă şi sarcina probei fraudei la lege. Menţinerea actului subsecvent şi opozabilitatea hotărârii judecătoreşti prin publicitate imobiliară
4. The Presumption of Good Faith and the Burden of Proving Fraud Against the Law. Maintenance of the Subsequent Act and the Opposability of the Court Decision Through Real Estate Publicity

Summary/Abstract: In the proposed case, a series of substantive rules contained in the Civil Code that produce direct procedural consequences are analyzed, in the context of an action for the finding of the absolute nullity of a subsequent legal act. The central element of the analysis concerns the presumption of good faith and the presumption of a lawful cause, rules that govern the allocation of the burden of proof and that place upon the claimant the obligation to prove the bad faith of the sub acquirer, respectively the fraud against the law. Closely related to these, the distinction between the binding force and the opposability of the court decision is examined, together with the conditioning of the opposability towards third parties upon the fulfilment of the real estate publicity formalities, as well as the mechanism of the exception to the resoluto iure dantis, resolvitur ius accipientis principle. In addition, the procedural relevance of the transitory law rules (the qualification of the action and the applicable law) and the imprescriptible character of the absolute nullity action, as a substantive defence distinct from the issue of the merits of the claim, are analyzed.

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