The inadmissibility of procedural invalidity by the party responsible for it: a comparative study

Abstract

Procedural nullity is one of the most prominent penalties imposed by the legislator for violating the formal rules governing judicial proceedings. However, adherence to it is not absolute, but rather governed by a set of controls aimed at achieving a balance between respect for procedural form and ensuring the proper administration of justice. Adherence to nullity requires the existence of a real and direct interest for the opponent and the absence of any explicit or implicit waiver of the right to invoke it, given that nullity was established primarily to protect the interests of the opponents and not merely to enforce formality.

In addition to these two conditions, the laws and judicial precedents have established a fundamental rule that the opponent may not invoke nullity if he is the cause of the procedural defect, since it is assumed that those who claim legal protection are acting in good faith and not contribute to the procedural violation through their conduct or negligence. If it is proven that the opponent was the cause of the defective procedure, their right to invoke nullity is forfeited, even if the defect remains formally valid.

        This rule is based on considerations of justice and legal logic, as it plays an effective role in preventing circumvention of procedures and exploitation of procedural errors to achieve unlawful consequences, as well as contributing to limiting the range of the application of nullity and its negative effects on the stability of the dispute and the speed of its resolution.

        This research addresses the rule in terms of its concept, legal basis, and scope of application, then discusses the conditions for its fulfillment in detail, thereby contributing to regulating the use of procedural nullity and achieving a balance between procedural form and the legislator's intended purpose.