Nullity of judicial acts in civil proceedings

Abstract

An ordered human society finds its own protection and attains its end through the observance of the laws regulating that particular society. These laws, if they are not to be a dead letter, must, of necessity, be supplemented by other laws which ensure the carrying into effect of the former laws: these laws are known as the laws of procedure. Their main purpose is that of seeking the best possible method for the search of truth in judicial proceedings. The elements which constitute every civil process are: the Action; the Defence; Evidence; the Judgement. The laws of procedure lay down how each of these elements should be regulated and what form they should take. Forms are established and certain facts are prohibited with the sole aim of safeguarding public order and protecting the rights of the citizen. Consequently, they should be scrupulously followed and upheld, although not to the extent of their becoming an instrument of cavilling or serving the whims of those who are intent of molesting their fellow men. From the nature and purpose of the laws of procedure, certain principles flow which serve as guidelines in regard to their application. They are to be carried into effect "ad litteram" and they are to be interpreted literally. In order to ensure the strict observance of the Code of Procedure in matters of substance, the law itself imposes a severe sanction, that of nullity. This sanction, the nullity of judicial acts in civil proceedings, forms the subject of our thesis. There are only a few sections in the Code of Organisation and Civil Procedure which deal specifically with the notion of nullity, its effects and consequences. But these sections impinge on most of what the legislator has laid down throughout the length of the Code in regard to the form of judicial acts. That is why the number of cases of nullity decided by our Courts is overwhelming. The pitfalls are many: the more we know about the subject, the more will we be able to steer an even course.