About the lack of administrative acts, the plea of illegality and security of legal relations. Some connections Cover Image
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Despre inexistența actelor administrative, excepția de nelegalitate și securitatea raporturilor juridice. Câteva conexiuni
About the lack of administrative acts, the plea of illegality and security of legal relations. Some connections

Author(s): Ovidiu Podaru
Subject(s): Law, Constitution, Jurisprudence
Published by: C.H. Beck Publishing House - Romania
Keywords: administrative act; non-existence; nullity; exception of illegality; principle of legal certainty

Summary/Abstract: Although almost all authors of administrative law deal with the concept of non-existence, in general, the case law is rather poor in this area. Perhaps because administration rarely commits illegalities of this magnitude. Maybe because, in such cases, the non-existent administrative act is not enforced, so there are no damaged persons. Yet sometimes legal practice meets this kind of cases, and the existing doctrine does not respond to some theoretical problems, which have significant pragmatic consequences: can a non-existing act be annulled? Can the non-existence of an administrative act be invoked by way of exception? If so, the non-existence exception has the same legal regime as the illegality exception? Can the principle of legal certainty be invoked by a person whose claimed rights are based on a non-existent act? The purpose of this study is to find answers to these questions. Starting from a historical analysis of non-existence and nullity, we have concluded that today, the goal of non-existence is to evade the terms imposed by the administrative litigation law where the illegalities are "unbearable". There are, however, given the legal provisions in effect, two types of non-existence: the “remediable” one, the most important case being that of the unpublished administrative acts for which the law expressly requires the sanction of non-existence and the “irremediable” one. Although, both can be invoked by way of exception, the first version (as opposed to the second) is not a species of illegality, but rather an exception of inefficiency (non- enforcement), a defense of substance. It is therefore arguable that it could be invoked on appeal, but it certainly can be invoked in regard to normative administrative acts. Finally, the non-existence excludes the applicability of the principle of legal certainty, having in mind the flagrance of the illegality, the good faith of any individual is excluded.

  • Issue Year: 2013
  • Issue No: 11
  • Page Range: 634-641
  • Page Count: 8
  • Language: Romanian