Specificitatea nulităţii persoanei juridice: argumente teoretice şi impulsuri jurisprudenţiale
The specificity of the nullity of the legal entity: theoretical arguments and jurisprudential impulses

Summary/Abstract: Since the period of Roman law, it was admitted that legal acts would not produce effects when certain conditions established for their valid conclusion are not respected. Subsequently, the institution of nullity was built on these premises and it was recognized even in Romanian law. The general concept was, until the entry into force of the new Civil Code, that the sanction is one specific to the civil legal act, being related to the will of the parties. The 2011 Civil Code regulates the institution of nullity of the legal person. The novelty is only apparent, because in reality the sanction of nullity had been previously provided in the case of companies, by Law no. 31/1990, being taken over from the French regulation on the same matter. The provisions of art. 196 et seq. of the Civil Code regulate the causes of nullity, its specific legal regime and the effects in the matter. The legislator’s interest in safeguarding the legal person and protecting the creditors within an institution whose applicability must remain limited to exceptional situations is noteworthy. From a jurisprudential point of view, the Court of Justice of the European Union has delivered a relevant solution in the Marleasing case, with implications both for the interpretation of the rules on the nullity of the legal person, and for the application of the provisions of European law directly between individuals. National courts have been confronted with a small number of cases in this matter, most of which are related to requests regarding the nullity of the constitutive act or dissolution. The courts’ approach has been to strictly apply the provisions on nullity. The need to distinguish between the grounds for nullity of the legal act – the constitutive act – and the specific grounds for nullity of the legal person is highlighted.

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