Imprescriptibilitatea dreptului material la acţiunea în constatarea nulităţii absolute a unui act juridic: o soluţie discutabilă

Rezumat

The study includes a critical analysis of the Civil Code solution regarding the non‑applicability of the statute of limitations to the material right to bring an action for absolute nullity. On this basis, several de lege ferenda proposals are made to adjust the legal regime of the absolute nullity.

First, the category of virtual absolute nullities should be excluded. They should always be express. The interdiction should be introduced in Art. 1.253 of the Civil Code, by replacing the current normative content. Until the lawmaker adopts this solution, the courts should be very reserved in finding cases of virtual absolute nullity.

Then, the non‑applicability of the statute of limitations to the material right to bring an action for absolute nullity should be kept only in the cases, expressly and restrictively provided, in which the conclusion of the legal act violates a legal rule that protects a fundamental value of the legal system; in cases where a legal rule that protects a general interest is violated, cases that should also be expressly and restrictively provided by the lawmaker, the material right to action for the absolute nullity of a legal act should be subject to limitation.

Finally, in the latter assumption, the limitation period for the material right to action could be longer (10 years or 5 years, as the case may be) than the common law limitation period, which also applies to the material right to bring an action for the relative nullity of a legal act.

Keywords: nullity; virtual nullity; express nullity; absolute nullity; relative nullity; material right to action; non‑applicability of the statute of limitation; limitation period; fundamental value; general interest.