Nulitatea absolută şi interesul general
Absolute nullity and the general interest

Summary/Abstract: The criterion of the nature of the protected interest is generally regarded as the principal distinguishing element in the classification of nullity into absolute and relative. The present paper sets out to demonstrate that this criterion is in reality merely a subsidiary one, dethroned by the express will of the legislator, who institutes, at least in some cases, the sanction of absolute nullity even in the absence of any protected general interest. Starting from an analysis of the notion of interest across various spheres of knowledge and establishing, within the legal sphere, an aggregation conception of the general interest, the paper traces the historical evolution of the dichotomy of nullity, from Roman law and French legal doctrine up to the new Civil Code. By reading Articles 1247, 1248 and 1253 of the new Civil Code together, as well as through an analysis of case law and of specific instances drawn from special legislation, it is demonstrated that the nature of the protected interest does not constitute a constraint imposed upon the legislator, but rather a subsidiary instrument of classification, available to the court where the law is silent. The paper concludes that the legislator remains sovereign in instituting absolute nullity, the criterion of the protected interest operating only in the absence of an express legal classification.

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