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

Abstract

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 void because provides an unlawful expiration term, it is automatically converted in a contract with no expiration term. This is a satisfactory remedy, since the employee obtains the highest satisfaction of his or her interest and economical benefits. Considering that governmental employments’ 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 would have 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 European law indicated to assure competitive market’s efficiency and protection.