L'invalidità satisfattiva dell'atto di autonomia privata e dell'atto amministrativo

TY - JOUR

T1 - L'invalidità satisfattiva dell'atto di autonomia privata e dell'atto amministrativo

AU - Plaia, Armando

PY - 2013

Y1 - 2013

N2 - The present article analyzes the evolution of remedies beyond the traditional civil law’s field, focusing on labour law, private law of public administration and other close fields. A remedy may be defined as the legal enforcement of an interest, which has not been voluntarily satisfied. In labour law, when an employment’s contract is null and voidbecause provides an unlawful expiration term, it is automatically converted in a contract with no expiration term. This is a satisfactoryremedy, since the employee obtains the highest satisfaction of his or her interest and economical benefits. Considering that governmentalemployments’ contracts cannot be converted, according to European jurisprudence the employee must be awarded with damage calculated on the amount of salaries that he or she wouldhave been entitled had the contract been converted. Therefore, also in this case the employee obtains the highest satisfaction of his or her interest.In governmental law, according to Article 34 of the new Italian Administrative Proceeding Code, when the government adopts an unlawful act, the courts may condemn it to adopt the lawful one,instead of just declaring its annulment. Hence, the courts have the power to directly satisfy the interest not voluntary satisfied by the government, giving to it the instructions to be followed when adopting the lawful act.Therefore, both in private and public law, the remedy is not just the annulment of the contract or act, but its modification (« conformation ») in order to satisfy the parties’ interest, similarly to the « protection nullity » of the law of contracts, as Europeanlaw indicated to assure competitive market’s efficiency and protection.

AB - The present article analyzes the evolution of remedies beyond the traditional civil law’s field, focusing on labour law, private law of public administration and other close fields. A remedy may be defined as the legal enforcement of an interest, which has not been voluntarily satisfied. In labour law, when an employment’s contract is null and voidbecause provides an unlawful expiration term, it is automatically converted in a contract with no expiration term. This is a satisfactoryremedy, since the employee obtains the highest satisfaction of his or her interest and economical benefits. Considering that governmentalemployments’ contracts cannot be converted, according to European jurisprudence the employee must be awarded with damage calculated on the amount of salaries that he or she wouldhave been entitled had the contract been converted. Therefore, also in this case the employee obtains the highest satisfaction of his or her interest.In governmental law, according to Article 34 of the new Italian Administrative Proceeding Code, when the government adopts an unlawful act, the courts may condemn it to adopt the lawful one,instead of just declaring its annulment. Hence, the courts have the power to directly satisfy the interest not voluntary satisfied by the government, giving to it the instructions to be followed when adopting the lawful act.Therefore, both in private and public law, the remedy is not just the annulment of the contract or act, but its modification (« conformation ») in order to satisfy the parties’ interest, similarly to the « protection nullity » of the law of contracts, as Europeanlaw indicated to assure competitive market’s efficiency and protection.

KW - atto amministrativo

KW - autonomia privata

KW - conformazione

KW - invalidità

KW - satisfattiva

UR - http://hdl.handle.net/10447/92866

M3 - Article

VL - 2013

JO - EUROPA E DIRITTO PRIVATO

JF - EUROPA E DIRITTO PRIVATO

SN - 1720-4542

ER -