Nullità e inesistenza del provvedimento amministrativo: profili statici e dinamici del rapporto alla luce del nuovo codice del processo

At the beginning, the research was intended to be developed in two stages. In the first stage I had to analyze the difference between invalid and non-existent case from a general perspective. With this goal in mind, I began this study and research analyzing the most reliable contribution of civil law. The initial approach, profoundly linked to civil law, was, in my opinion, necessary due to two reasons: the first reason is the versatility of the subject that has its roots in civil law; the second reason is the need to highlight the peculiarity of the administrative decision in comparison with the legal transaction, in order to deny the opportunity to fill any regulatory gaps merely through a reference to the categories of private law . In a second stage, I had to analyze the profiles more closely related to protection, or, to better say, to the impact that the distinction between invalidity and non-existence would have determined on the protection of subjective legal claims affected by the measure, invalid and non-existent. However, analyzing in detail the relationship between the two figures , first from a logical – legal point of view , and later from a practical point of view , especially with reference to the recent positive outcome, I realized that the approach initially undertaken regarding the administrative measure, would no longer be effective. Developing my research and approaching the topic from a public law perspective, I realized that the debate was gradually taking different characteristics that didn’t allow to face the issues splitting the two perspectives (first addressing them only from a general point of view -or at least limited to the examination of substantial data- and then in terms of protection, therefore with reference to the procedural law). Therefore, I changed my approach and, after a first part of the work intended to clarify the terms of the debate on the advisability of maintaining two distinct categories (invalidity and non-existence), referring both to the period before and after the introduction of the substantive and procedural rules on invalidity, I continued the analysis of the various applications as they came to my attention, prompted by and jointed to the examination of normative data. The result was a work whose appearance and purpose is essentially procedural. For this reason, the substantial aspects, due to the need of conciseness, although of undoubted importance, were addressed only " incidentally ", with the purpose of correctly understand and solve the numerous problems that emerged on the case . Article 31 paragraph 4 c . p . a., in particular, has been examined in detail in its architecture and in its formal structure, especially with reference to the complex regulation of the term and the reasons underlying it . It is in the discipline of the term that we find , in fact , the legislator's attention to the substantial figure , represented by the variety of interests , public as well as private , affected by the invalid measure. The analysis of the provision of the law continued with a comparative approach , with respect to institutions and categories that appear similar to the invalidity. That was in order to highlight the differences with the category of non-existence. Finally, the work provides a broad discussion of the possible forms of protection remedies available against the invalid measure in different areas - not only administrative , but also criminal – affected by the exercise of power.