Dissertations / Theses on the topic 'Droit privé/droit public'
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Labrot, Émilie. "L'imprévision : étude comparée droit public-droit privé." Toulouse 1, 2012. http://faraway.parisnanterre.fr/login?url=http://www.harmatheque.com/ebook/l-imprevision-etude-comparee-droit-publicdroit-prive-des-contrats-51357.
Full textIt has long seemed impossible to reduce the opposition between private and public law in terms of unforseeability. However, since the end of the twentieth century, converging movements from each side have tended to limit the distinction between both regimes towards unforseeability. Today, the opposition of the different regimes remains mainly dogmatic, all the more, because the theory of unpredictable constraints, pending of the unforseeability theory in the works contracts, is admitted by both the administrative and the judicial judge. We could therefore consider a unification of the unforseeability regimes, and more generally of the law of contracts in accordance with the prospect of harmonization of the European law of contracts. The development and the functioning of the internal market demands in fact a law of contracts really unified. Besides, many states from the European Union have dedicated an unforseeability theory within their positive law of contracts, inspired in particular by the practice of international trade. The unforeseeability theory is henceforth acknowledged. Its appropriateness within the law of contracts, especially at a time of crisis is in fact a matter for the economic theory
Munoz, Frédérique. "La conciliation : du droit privé au droit public." Paris 1, 1997. http://www.theses.fr/1997PA010326.
Full textFrench lawyers are more and more interested in alternative means of dispute resolution (adr). One of them, "settlement", may he used by the judge and also out of courts ; that is why it is spreading out. Settlement first appeared in 1790 in private trials with a particular purpose : keeping the judge as a servant of the law. And it was the "juge de paix" monopoly. This situation is now over and settlement can be dealt with every "juge judiciaire" and since 1986 with the french "tribunal administratif. However, despite its avantages, settlement is not as frequently used as it could be, due to a lack of time. Out of court settlement, which appeared during the last century, has become more and more widespread since the eighties. Unfortunately, procedures are not well known and badly defined
Font, Nicolas. "Le travail subordonné entre droit privé et droit public." Aix-Marseille 3, 2007. http://buadistant.univ-angers.fr/login?url=https://www.dalloz-bibliotheque.fr/pvurl.php?r=http%3A%2F%2Fdallozbndpro-pvgpsla.dalloz-bibliotheque.fr%2Ffr%2Fpvpage2.asp%3Fpuc%3D5442%26nu%3D31.
Full text. The apprehension of subordinate labour by the law is yet another example of juridical polarization. Labour law represents the branch of private law applicable to the relationships that bind a private employer to his emploees. As for the branch of public law, it generally orchestrates the relations between the civil service and civil servants. Although they are opposed theoretically, labour law and civil service law have been built and perfected thanks to a mechanism of reciprocal influences. Considering the fact that a corpus of common rules has been set up, one may think that the juridical condition of civil servants is, in many respects, similar to that of private employees. As a matter of fact, the remaining disparities are more and more questioned. From a sociological point of view, the civil service seems to be a privileged sector, in which the servants are cut off from social realities. From a juridical point of view, public law is witnessing a smear campaign which particularly challenges the validity of the law of the civil service beside the existence of labour law. Subordinate labour thus appears to become a private law concern exclusively. Several recent factors have led to this juridical unificationn: the juridical establishment of the notion of worker, the Europeanization of intern law, the introduction of permanent contracts within the public sector, the emerging idea according to which labour law not only protects workers as much as the civil service does, but also offers a better management of the personnel, etc. Notwithstanding, eventhough the unity of social law may seem ineluctable, it is in fact illusory. Serving the general interest implies the upholding of some specific characteristics within the treatment of the servants who are in charge of its satisfaction, which no privatisation will be able to cancel without totally disrupting what makes French administration so peculiar. In the same way, labour law is undergoing a profound change and takes into account some considerations which are extraneous to professional relations in the administration. Finally, while it seems indispensable to reform the status of the civil service, it is likewise necessary not to do so because one thinks there is just one alternative: the upholding of the status or the privatisation. Indeed, no legal reason except out of date standards commands to exclude contractual tools in the civil service. In fact, as far as the rules applicable to subordinate labour are concerned, the distinction between public law and private law may not be updated but rather displaced. Subordinate work remains and will remain, in the absence of a contradictory political will a concern for both public and private laws
Gille, Amandine. "La médecine illibérale entre droit public et droit privé." Thesis, Aix-Marseille, 2016. http://www.theses.fr/2016AIXM1042.
Full textDespite being organized on a liberal inspiration, the medical profession can be practiced through a subordinate relationship. This way of practicing the medical profession includes every doctor who fulfills his professional duties in the profit and for a public or private employer. It is unique by its organization, according to a theoretical division making the difference between doctors ruled by public laws, and doctors who practice under private laws. It follows a particular scheme, in which civil servants are differenciated from salaried employees ruled by private laws, a direct result, typical of the french legal system, of the traditional duality between public and private law.However, like the differenciation between civil servants and salaried employees ruled by private laws, which has lost most of its strongness, the separation between subordinate doctors ruled by public laws and subordinate doctors ruled by private laws is not relevant anymore, because these two types of doctors, linked by one key concept, the subordination, have kept getting closer over time. The different rules that apply to the subordinate doctors have reach out to each other and have progressed with mutual borrowings. These attraction moves have created a homogeneous medical practice, by erasing the differences between subordinate doctors ruled by public laws and those who are governed by private laws
Vareilles-Sommières, Pascal de. "La compétence normative de l'Etat en matière de droit privé, droit international public et droit international privé." Paris 1, 1992. http://www.theses.fr/1992PA010261.
Full textGiven a private law relationship, does the question wether a state has jurisdiction to regulate this relationship find answers in public international law, and if so, what is its substance ? state jurisdiction to regulate private law relationships is essentially regulated by private international law, which provides for jurisdiction to adjudicate (conflict of jurisdiction rules) and, rules of jurisdiction to prescribe (conflict of laws rules). In order to have an influence on the answers to questions implemented by this rules, public international law might either deprive them of efficacity by substitution of real internationalrules of jurisdiction, or prescribe to states which enact them to comply with some conditions of lawfulness. A quest on international prescription bearing on state jurisdiction in private law matters shows that international law does not contain in itself real rules of jurisdiction, but that it just regulates the way the states implement both their own jurisdiction and the jurisdiction of other states. The content of this regulation can be reduced to the principle of non-intervention of states in domestic affairs of other states. That means that international law forbids a state to challenge independance of another state in taking its place as a legislator or judge of all or a substantial partoi private law relationships belonging to its jurisdiction. A state which violates this principle would have to deprive of efficacity unlawful norms, according to international law of states responsibility ; the lawfulness and afficacity of these norms could even be challenged by third-states
Pampoukis, Charalampos. "L'acte public en droit international privé." Paris 1, 1990. http://www.theses.fr/1990PA010251.
Full textThe term "public act" defines acts which have accomplished from public authorities. According to the function assumed by the public authority and the scope of its participation in the frafting of the act, we may distinguish between the "decision" and the "quasi-public act". The method of recognition has as object the conditions under which the effects of the foreign public act will be accepted in the requesting state. Accordingly the nature of each norm has to be submitted to an appropriate control. That is known as the principle of specificity. The examination of the particular problem of recognition of foreign "quasi-public acts" illustratest this thesis
Callé, Pierre. "L'acte public en droit international privé." Caen, 2002. http://www.theses.fr/2002CAEN0069.
Full textShahabi, Mahdi. "L'interpénétration du droit privé et du droit public : une approche transpositiviste du Droit." Nantes, 2008. http://www.theses.fr/2008NANT4008.
Full textThe study of the interpenetration of the Public Law and the Private Law corresponds to the end of the Law and its evolutions, but to the end issued from the transpositivist approach of the base of the legal rule, an approach which removes neither the individual nor the State. Thus, our study is a study about the general theory of the Law. However, this theory tries to find its practical effects in the social, economic and political evolutions. That is why the evolution of the individualistic society to the assurancielle society is taken into account
Meyer, Nadège. "L'ordre public en droit du travail : contribution à l'étude de l'ordre public en droit privé." Toulouse 1, 2003. http://www.theses.fr/2003TOU10065.
Full textThe law and order watches the various interests of the society. But it deviated from this role. In private law, the law and order guarantees the interests of individuals, endowed with personal freedoms and fundamental rights, as much as the protection of the social group. It seems essential to study the impact of the internationalization of the exchanges on the law and order of internal law. Labour Laws is a suitable discipline to establish the socioeconomic evolution which is translated by the renewal of the law and order. Therefore, to understand the current notion of law and order in labour law, one should use a teleological approach, and should also compare that notion to other branches in private law, in order to either, deduct the unity or the diversity of the law and order in private law. Does the law and order not focus on a sole concept, that of protection? Protection of society, of the individual, of social groups, of community and even European interests. .
Papaefthymiou, Sophie. "La distinction du "droit privé - droit public" dans la théorie du droit et de l'Etat." Paris 10, 1994. http://www.theses.fr/1994PA100052.
Full textSaillant, Elodie. "L'exorbitance en droit public." Bordeaux 4, 2009. http://www.theses.fr/2009BOR40044.
Full textOften questioned in terms of comparative public law and private law, regarded as a quality characteristic of public law, exorbitance must first be understood as a notion of public law. At the intersection of power and law, exorbitance is the translation in the law of political power's specificity and superiority. And this in a double movement. It is first certainly an instrument of the constitution of the political power's specificity and superiority. Defined as the existence of rules of law applied to political power, different from those which are applied to private persons, and contain the power to command them, exorbitance gives legal expression to the political power's specificity and superiority over members of the social group. Because the translation is done by law, exorbitance thus contributes to legitimization of such specificity and superiority, revealing at the same time the ideological risk of its instrumentality. Instrumentality however minimized because exorbitance is also, and above all, recognition of the political power's specificity and superiority, the persistance of the existence of exorbitant rules in the law reflecting the compelling nature of specificity but also the superiority of political power. The application of exorbitant rules must therefore be strictly limited only to political activities, and constitute a real duty for political power, thereby assuming exorbitance
Laurichesse, Céline. "La grève en droit international privé." Thesis, Dijon, 2014. http://www.theses.fr/2014DIJOD008/document.
Full textThe development of the strike in the international order can appreciate richness and diversity of the collective expression of workers, it also increased competition from different national laws. The absence of a regulation reflects the difficulty of controlling the legal concept and it creates a conflict of laws and courts. The need for the adoption of rules of conflict, which determines the law and the competent court, has therefore become necessary to provide an answer to this conflict problem. The character of the fundamental right to strike, however, requires to be special protection when its value is questioned by an authority designated by the conflict rule foreign law. As such, the conventional public policy exception allows oust usefully foreign law contrary to public policy. The requirement of the presence of links relevant connecting with the legal order and a certain degree of gravity of the alleged violation of the fundamental right to strike ensures a weighted intervention public policy exception. It constitutes an effective means of protecting the right to strike while remaining a mechanism whose intervention is exceptional
Pochat, Hélène. "Les transformations du droit hospitalier contemporain : étude sur les évolutions de la distinction droit public - droit privé." Nantes, 2005. http://www.theses.fr/2005NANT4012.
Full textA new model of development and implementation of health-related public decision, resting on the multiplication of agencies and contracts, and favouring the participation of citizens in health-related policies, has progressively emerged. Therefore, haven't the hybridization of the hospital public law, through the adoption of quality and efficiency requirements, the consecration of this new mode of decision-making synonymous with a relinquishment, albeit partial, of the virtue of constraint, as well as the state's giving up of the monopoly of defining general interest, undermined the traditional groundings of the public/private dichotomy? Both the multiplication of agencies and the citizens' empowerment actually contribute to endowing the state with a new legitimacy to define general interest, whereas the development of contracts illustrate an evolution of the traditional implementation of public constraint. Besides, the quality and efficiency requirements have not become new management principles of the hospital public service. Nevertheless, hasn't the evolution of hospital law challenged the reality of the opposition between the public and the private sector as far as its enforcement is concerned. Indeed, taking hospital patients' rights into account has made the relevance of both this jurisdictional dualism and the classical opposition between status and contract obsolete. However, the law has imposed a new mission — fighting social exclusion — and a new duty — setting up a committee of users at the Board of Governors — to the hospital public service. The condition of the hospital public service user has thus become unquestionably crucial
Baldovini, Maud. "La classification académique du droit pénal, entre droit public et droit privé : sur un paradoxe de la science du droit." Caen, 2009. http://www.theses.fr/2009CAEN0087.
Full textFrench penal law has been handled as a part of private law since the split of the French law school curriculum in the late nineteenth century, separating private law and public law. The analysis of the current categorization demonstrates that penal law should be included in public law based on a thorough study of the instruction of legal theory in French law schools. The theoretical classification has been dismissed for a more convenient practical approach that includes penal law into private law. The French jurisdictional dualism, in which a judicial judge handles private law and an administrative judge handles public law, also fails to justify the assignment of penal law to private law, as the study of the judicial judge’s arguments reveal. This research will demonstrate that penal law has been listed as private law in a fear of altering a long-standing academic tradition, initiated back in the nineteenth century, when the instruction of the law focused on judicial practical knowledge only, denying the primary theoretical essence of the law
Al, Hajjar Wissam. "Les nouveaux contrats publics de construction en droit français et en droit libanais." Montpellier 1, 2007. http://www.theses.fr/2007MON10032.
Full textPanopoulos, Georgios. "Une méthode de délimitation du domaine d'application du droit privé communautaire : étude de droit international privé." Paris 1, 2007. http://www.theses.fr/2007PA010294.
Full textTomc, Nicolas Antoine. "Mourir à l’hôpital : entre droit privé et droit public : approche pratique, théorique et philosophique." Thesis, Bordeaux 4, 2012. http://www.theses.fr/2012BOR40065/document.
Full textToday, dying at hospital is the most curently idea agreed in order to protect people. That’s maybe the reason why medical studies took this as an issue more than lawyer studies. It’s around the middle of the twentieth century, after one more genocide, marking the spirit of the humanity certainly for all eternity, that a new bioethical language is going to be made the vector of a consideration renewed by the person. The man becomes a human-person in the international texts, proclaiming from then on of unpublished works human rights. While taking the bioethics as object of reflection a certain health law, widely inspired by the production of committees of ethics, emerged from a privatiste doctrine in the first one, to encircle first rights of the one that it would have been advisable to call then the dying. However, the public institution of health confronted with the medical technologisation, allowing then an extension of the end of life, quickly was to be a place of conflict between those who were then considered as users of public service, and principals doctors of the State. The superiority of the private law of the person seemed then threatened, the administrative law taking the power to indemnify the victims of the hospital. However, by means of systematic reductions looking at the dying person only under an angle génériciste, recovering from a public law, this one gradually found itself perfectly ignored in the first essence which the private law succeeded in perceiving. The most recent forms of deresponsabilisation would give evidence of a consecration of the compensation stopping an objectivisation the underlying being to the dying, going person to justify the euthanasic act. The approach repeated by this difficult object of study would find to generate a reflection which the philosopher of the right(law) would engage, reintroducing the person inflexible as point of departure and arrival, so that could be harmonized the inevitable meeting of the public and private, legal and political domains, to return all its onto-axiological truth to the first rights of the dying subject
Lequet, Pierre. "L'ordre public environnemental et le contrat de droit privé." Thesis, Université Paris-Saclay (ComUE), 2019. http://www.theses.fr/2019SACLV043.
Full textProtection of the environment and the contract appear to be sometimes contradictory, sometimes complementary. As a legal instrument for economic activities, the contract contributes to the ecological crisis. This crisis threatens the sustainability of the conditions for a life developed on earth for present and future generations. The objective of sustainable development requires the construction of an environmental public policy to control the conformity of the private law contract with the conservation of the environmental interest.Inducing the existence of an environmental public policy from the multitude of mandatory environmental protection rules, we propose a general theory of environmental public policy and its articulation with the private law contract.The latter reveals that while the validity of the private law contract is conditional on compliance with environmental public policy, the proper implementation of environmental public policy is conditional on recognition of the environmental function of the contract
Charlot, Camille. "Le droit privé du travail et le secteur public." Thesis, Paris 1, 2018. http://www.theses.fr/2018PA01D011.
Full textWhile the means of management of public services and the work statutes associated are evolving, private labour law is becoming a reference within public services, to the detriment of the statutory logic that traditionally prevails within public services and state-owned companies. Indeed, if the legal framework surrounding public services retains particular characteristics, its specificity is slowly declining, leaving place to a void which facilitates / encourages the expansion of private labour law, which is becoming ordinary law. This trend raises numerous questions. How does the new public services approach translate into the legal framework of work relations in public services? Through which proves does private law implement itself? To which resistances and distortions is it faced with? Which public law mechanisms can then be used to adapt such implementation? This study shows that the specificity of public services is no longer enough, in its own, to become an obstacle against the continuing implementation of private labour law in the public sector
Lin, En Wei. "Les sources doctrinales du droit international privé taïwanais." Université Robert Schuman (Strasbourg) (1971-2008), 2008. https://publication-theses.unistra.fr/public/theses_doctorat/2008/LIN_En_Wei_2008.pdf.
Full textComparing with the history of the foreign doctrines, the study in the field of Private International Law started lately in Taiwan, where there is no tradition of research on Private International Law because of the historical factors. The doctrinal sources come from actually the foreign studies, which frequently brings the Taiwanese scholars to renew their visions in order to coordinate the diversity resulting from the different legal system. However, there are no any French-speaking studies, which offer a general analysis on the doctrines of the Taiwanese Private International Law. Thus, this thesis tries to fill this gap. Moreover, the analysis relating to the reciprocal influence between the foreign theories and the Taiwanese studies will help us to reflect the basic idea of this discipline. Therefore, this thesis will also try to analyze the influence of these doctrinal sources on the Taiwanese Private International Law. In the beginning, this study specifies the object of the Taiwanese Private International Law and then to analyze its adopted methodology. As regards the object of the Taiwanese Private International Law, the present thesis estimates that the field of study of the Taiwanese doctrines of the Taiwanese Private International Law is vaster than in the past. In the other hand, with regard to the methodology adopted, in our opinion, the idea of prevailing values, which come from the substantial law, will be the mainstream leading the methodology of the Taiwanese Private International Law
Legendre, Rebecca. "Droits fondamentaux et droit international privé : Réflexion en matière personnelle et familiale." Thesis, Paris 2, 2018. http://www.theses.fr/2018PA020074.
Full textFundamental rights put private international law to the test. First, the context in which private international law operates has evolved. Fundamental rights have created a better, closer, intertwining of the separate state legal orders and have achieved a higher protection for the persons as they experience international mobility. If this evolution does not threaten, as such, the existence of private international law, it must be acknowledged that fundamental rights modify its analysis. Whereas the conflicts between legal orders are transformed into conflicts between values, the hierarchy of interests protected by private international law is replaced by a balancing of these interests. The solutions of private international law are thus disrupted by the enforcement of fundamental rights through litigation. Proportionality is at the source of this disruption. Being a case by case technique of enforcement of fundamental rights, the influence of the proportionality test on private international is uneven. If the proportionality test is found to be overall indifferent to the methods of private international law, its main impact is on the solutions of PIL. The European courts are indeed prone to favour the continuity in the legal situations of the persons, over the defence of the internal cohesion of the state legal orders. As a consequence, private international law is invited to reach liberal solutions. The enforcement of fundamental rights through litigation must hence be clarified so as to maintain a mesure of authority and predictability of the solutions of the rules of conflict of laws, international jurisdiction and recognition of foreign judgements. It is, on the one hand, by methodologically dissociating the enforcement of fundamental rights from the public policy exception and, on the other hand, through an amendment to the proportionality test, that the balance of private international may hopefully be restored
Drouiller, Camille. "Ordre public et droits fondamentaux. Contribution à l’étude de la fondamentalisation du droit privé interne." Thesis, Pau, 2018. http://www.theses.fr/2018PAUU2038/document.
Full textThe fundamentalisation of law, which has been occurring for several decades now, has had an impact on all fields. Fundamental rights have become predominant in every branch of the law, and their recognition as essential social values justifies their protection under the public policy. Fundamental rights have thus been incorporated into public policy. This study focuses on this particular aspect of fundamentalisation.This phenomenon has not only renewed the notion, but also profoundly changed it. Being broadened by fundamental rights, the concept of public policy had to be reconsidered. Originally conceived as a mechanism that restricts individual will, implemented with holistic legislative values and apprehended in a state legal order, the public policy had to be revamped after the intrusion of fundamental rights. Besides, it appears that this substantial enrichment of public policy has led to the emergence of new normative conflicts engaging public policy provisions. Not only are fundamental rights implemented into the internal legal order - in the strict sense of the term – but also into supranational legal orders, such as the European Union and the Council of Europe, which have a privileged position. Norm conflicts involving various public policy provisions and including assorted values have seen the light of day throughout all levels of the hierarchy of norms. This new type of conflicts have had an impact on the main feature of public policy, namely its normativity.The study therefore endeavours to justify the integration of fundamental rights into the public policy, and to determine the consequences of such mechanism on the notion of public policy. Besides, the review of normative conflicts involving public policy provisions has to be approached from a wider perspective of legal pluralism
Bonan, Sylvie. "La privatisation en droit international public." Paris 10, 2002. http://www.theses.fr/2002PA100141.
Full textKessler, Guillaume. "Les partenariats enregistrés en droit international privé." Paris 1, 2003. http://www.theses.fr/2003PA010307.
Full textNord, Nicolas. "Ordre public et lois de police en droit international privé." Université Robert Schuman (Strasbourg) (1971-2008), 2003. http://www.theses.fr/2003STR30001.
Full textMandatory rules and Public policy are opposed in private international law, by the mains trench authors. The first intervenes before the conflict of laws rule to permit application of norms of particular importance, the second after, to exclude a foreign rule which contradicts the forum fundamental principles. Never the less, this approach is questionable. Some links exist between them. Another presentation can be proposed and is sometimes effective in other countries. Both mechanisms can complete each other and are not opposed. By the way, they can contribute to a real conflictual dynamism. It is possible to deduce from their intervention an inadequation from the principle rule and to create a new one more satisfying and this for every method. Further more, this situation is useful for the foreign notions. Foreign public policy can take more importance, just as foreign mandatory rules. This must be so in particular when a foreign conflict law or special methods are used
Mignot, Dominique Aimé. "Droit public et privé d'après l'oeuvre de Pline le Jeune." Lyon 3, 1990. http://www.theses.fr/1990LYO3A002.
Full textKrokhalev, Sergey. "L'ordre public en droit international privé comparé français et russe." Paris 12, 2005. https://athena.u-pec.fr/primo-explore/search?query=any,exact,990002456480204611&vid=upec.
Full textWe are before the study of the public policy in the international private law. This research is based on the comparative and critical analysis of the french and russian law. The author, during his study, shows the theoretical aspects of the concept of the public policy. We meet the attentive and deep analysis of the public policy's elements – its function, contents, sources, mechanism, and the consequences of its application. The candidate proposes a critical analysis of the judicial practice, shows an important field of the public policy'spossible application in the sphere of the international civil procedure : on the stage of the execution of the rogatory letters, of the requests for the signification or notification, on the stage of the exequatur of the foreign judgements and of the acts of the public authorities. Finally the author tries to retrace the future prospects of the public policy
Latil, Cédric. "Intérêt public et lois de police en droit international privé." Thesis, Aix-Marseille, 2015. http://www.theses.fr/2015AIXM1077.
Full textOverriding mandatory provisions is traditionally defined as a provisions the respect for which is regarded as necessary by a country for safeguarding its political, social or economic organisation. Hence, the Courts apply the law of the forum automatically and do not apply their own conflit of rules. Definition is not precise enough to be used accurately. Therefore we propose to define concept of Overriding mandatory provisions focuses on the « Public Interest », which is derived from article 9, paragraph 1 of the regulation on the law applicable to the contractual obligations. In the following lines, we wonder about the mandatory implantation of these rules at the intrenational level. Our aim is to measure the impact of Public Interest in the conflict of laws and in the conflict of jurisdictions
Cheikholeslami, Sayed Mohsen. "Applicabilite d'office du droit etranger et ses limites en droit international prive." Nantes, 1995. http://www.theses.fr/1995NANT4023.
Full textIn this thesis we will examine the application of obligatory foreign laws and the cases when they can not be used. The question is to know whether the rule of conflict makes foreign laws applicable, and whether they should be used as any other law, obligatorily used by the judge or if they should only be used in certain cases. This researche will contain the following subjects ; 1) the foundations of the application of local laws (1ex fori). 2) the foundations of the application of foreign laws. 3) the impossibility of establishing the content of foreign laws. 4) public order and the rejection of foreign law. 5) the evasion of the law and the limits of using foreign laws. 6) the renvoi and the limits of using foreign laws competently
Sehil, Nouha. "Montages contractuels : qualification, enjeux et perspectives, contribution à l'analyse en droit privé et en droit public." Thesis, Aix-Marseille, 2014. http://www.theses.fr/2014AIXM1090.
Full textStemming from the practice,the phenomenon of the contractual editings became a daily reality of business'life, labor relations, and even economic law. The question settles then of its reception by positive law. Absent in the legal vocabulary, the editing is a concept to be defined. From a theoretical point of view, it represents an articulation of a set of acts or operations with the aim of an appropriate purpose. However, it's far from reflecting a uniform reality. In private law, as in public law, it's a dialectic between standard and practice, even between the complexity and the complication because it departs from the classic contract's plan, what raises the question of its insertion in the contractual order. From a practical point of view,it appears as a multidisciplinary and diversified phenomenon which couldn't be separated from the economic imperatives.An analysis of the various financial and fiscal aspects allows a better understanding of its transverse character. As any engineering, the jurisprudence and the legislator try to get grips with. For the editings putting in the presence of the crossed problems of public and private law, the implementation of the contractual solutions relative to the financing deprived of public equipments such as the formulae of Public Private Partnership of services (CP, GAPED, essential AOT ), works contracts (interested state control, lease), is essential. Also, regarding real-estate development, these solutions have to allow an outsourcing of the technical project ownership of the construction's operations (VEFA, lease-back, contracts of real-estate development..)
Archer, Delphine. "Impérativité et ordre public en droit communautaire et droit international privé des contrats : Etude de conflits de lois." Cergy-Pontoise, 2006. http://biblioweb.u-cergy.fr/theses/06CERG0290.pdf.
Full textThe enforcement of Treaty of Amsterdam, which has vested EC law in new powers in the field of private international law, leads to reconsider the relationships between both disciplines. In this respect, some authors have pointed out the peculiarities of the methods and solutions of EC private international law. Such an assumption must be scrutinized, which leads us to ascertain the impact of EC public policy on the global solutions of conflits of laws. Once this thesis has been set aside, the door is open to consider the means of acheaving a successful combination between both disciplines, especially in the field of labour law and consumer law. We will then display how EC law, using private international law traditional tools, can help in improving them. The current process of integration of the Rome convention on the law applicable to contractual obligations in EC law gives the opportunity to clarify the methods of the conflict of laws in the field of public policy
Hannoun, Charley. "Le droit et les groupes de sociétés." Paris 10, 1988. http://www.theses.fr/1988PA100054.
Full textThe subject of this research is to bring out an explanatory theory of the relations between law and groups of companies. The initial intuition is that group's rights can't be separated from the general structure of contempory law. The general principle of "gouvernementalite" deducted from philosopher Michel Foucault’s analysis has since led us to observe the emergence of a new juridical system: the naturel economic right its two basic aspects: the search of balance and the economic and social "police". The law crisis thus should be the mere expression of the transition between two underlying rationalities: the "souveraineté" and the "gouvernementalité". Reinterpreted in the light of this analysis, the groups’ right shows the will to adjust two imperious contradictions: the maintenance of society’s autonomy principle and the acknowledgment of the groups. It arises from this the functional and relative character of the notion. On the basis of this rationality we have then tried to build, in a more technical way, a theory of corporate bodies’ transparency able to precise the criterion by which can be discussed the society’s autonomy principle to the benefit of economic unity. This notion draws nearer to other known notions like simulation, fraud or appearance. In that manner can be withdrew a lot of doubts concerning the groups law
Brière, Carine. "Les conflits de conventions internationales en droit privé." Rouen, 1999. http://www.theses.fr/1999ROUEL381.
Full textCorbion, Lycette. "Le déni de justice en droit international privé." Paris 2, 2002. http://www.theses.fr/2002PA020055.
Full textBouchez, Michel. "La suppression du secteur privé à l'hôpital public." Bordeaux 1, 1985. http://www.theses.fr/1985BOR1D314.
Full textBuruianã, Monica-Elena. "L'application de la loi étrangère en droit international privé." Thesis, Bordeaux, 2016. http://www.theses.fr/2016BORD0067/document.
Full textThe national or the European private international law is taking into a particular accountthe foreign legal systems. The foreign law application is an expression of the attention given to the foreignlegal systems, but applying a law that belongs to a different legal system than the legal system of the forumcountry may provoke a defence reaction caused by the existing differences between the legal systemsinvolved. The foreign law application is therefore confronted to different obstacles that tend to ensure aprimary application of the lex fori. First, the techniques used by the legal system of the forum country toapply the foreign law are not entirely favourable to this kind of application, as evidenced by the recurrentintervention of the international public policy. Furthermore, there are elements that are exogenous to thelegal system of the forum country, such as different understandings of the same legal institution that canobstruct the foreign law application. There is thus a gap between the theory of the private internationalrules, which would appeal a frequent application of the foreign law, and the use that is made of them by theauthorities of the forum country, which often leads to the neutralization of the foreign law. This studydefends a better compliance to the theory of private international law, which would promote the applicationof the foreign law. In this perspective, the private international law of the European Union provides animportant source of « savoir-faire » as it promotes the application of a foreign law belonging to anotherMember States
Clamens, Stéphanie. "Le critère matériel, critère d'analyse du droit administratif : éléments pour une étude renouvelée de la distinction entre droit public et droit privé." Paris 13, 2000. http://www.theses.fr/2000PA131023.
Full textChilstein, David. "Droit pénal international et lois de police : essai sur l'application dans l'espace du droit pénal accessoire." Paris 1, 2001. http://www.theses.fr/2001PA01A002.
Full textThe aim of this thesis is to query the validity of the present criteria used in international criminal law. This means in particular investigating whether the criteria are suited to the rules of subsidiary criminal law which covers all the criminal provisions penalising breaches of legal rules of another kind (civil, administrative, commercial) or falling materially within the framework of a particular set of regulations. It seems that the criteria of international criminal law were designed in view of the breaches of traditional criminal law and that they do not fit in well with the sophistication of such subsidiary rules whose content is not taken into account in the determination of their spatial field of application. Thus, we propose to make good this situation by using a method borrowed from private international law : the immediate application method. This in fact consists of determining the spatial field of application of the laws according to their end purpose. With this aim in view, it is necessary to spell out the sense of the different criminal regulations in order to discover the criteria which allow their spatial field of application to be adequately determined. Ln this respect, it would certainly be useful to make a distinction depending on whether the rule is intended to protect the public interest (directive rule) or the private interest (protective rule)
Marchadier, Fabien. "Les objectifs généraux du droit international privé à l'épreuve de la CEDH." Limoges, 2005. http://aurore.unilim.fr/theses/nxfile/default/b3dff16e-dffd-441e-bfc6-283f5bf28ae5/blobholder:0/2005LIMO0503.pdf.
Full textPrivate international law pursues two general goals : one tends to develop the coherence and the fluidity of international legal order despite the phenomenon of the frontier ; and the other tends to insure the cohesion and the essential values of the inner legal order. These essential values naturally nourish rights guaranteed by ECHR, thus creating an imbalance risk in the subject, where only one of its goal ends out to be strengthened. The discontinuity of legal orders is though not to be feared. ECHR exerts an influence which exceeds the protection alone of the forum. It contributes to the strengthening of the international order. It reduces the chances of deficiencies and accumulations by prohibing denials of justice and by helping to the determination of the judge who has international jurisdiction. Furthermore, it responds to clumsy situations since the defect of recognition of foreign crystallized situations constitutes an interference in the rights it advocates. Consequently, the tension between the inner and the international goals of private international law will not systematically be solved to the advantage of the first. Hierarchy yields to conciliation. Now, the latter acts according to features of the subject. In this sense, the goal of protection leads to an adjusted version of the conventional standard which is seen differently when the foreign norm comes from another State part of the Convention, or from a third State. Promotion of international goal and broad implementation of inner goals, such are the two areas where private international law and ECHR law richly meet
Schryve, Ludovic. "L'ordre public et le droit des sociétés." Lille 2, 2009. http://www.theses.fr/2009LIL20004.
Full textPublic policy and corporate law have traditionnaly tumultuous reprts. The presence of the fomer in tha latter is inextricably linked to the rôle that intends to play the State in the economy. The public policy of comporate law is oftendescribed as detailed and repressive. It would be a reflection of an era, that of the after war, where the State intended to control and govern all parts of economy. The tendency to regulate gradually fades now in the face of globalisation and the widespread opening markets to international competition. This redefinition of the rôle of the State does affect the concept of public policy in corporate law ? It is always embodied in an «economic» public policy or has evolved into its foundations or its tecnicals to adapt to the new relationship which the State is required to maintain with the market ?
Serre, Pauline. "La dualité juridictionnelle à l'épreuve de l'érosion de la distinction entre le droit public et le droit privé." Thesis, Aix-Marseille, 2016. http://www.theses.fr/2016AIXM1047/document.
Full textThis research deals about the confusion between the public and the private law as well as the impact on the mechanics of two different courts. The first part describes the erosion of both entities and its main effect : the growth of interconnections between the distinct judges. The development of relations between the judges is distinguished by the trial harmonisation and the coherence of court rulings. However the second part demonstrates the reality of points of contention between judges and the complexity of rules of competence. If today the preservation of two kinds of courts is not threatened it is required to renew it to better resist to the erosion development between the public and the private law
Benmbarek-Lesaffre, Kenza. "Les règles matérielles de droit international privé." Thesis, Paris 2, 2017. http://www.theses.fr/2017PA020065.
Full textThe material rules of private international law are classically defined as rules that provide substantive answers to a question of private international law. They are distinguished from the traditional conflict of laws rule which is neutral, abstract, bilateral and limited, in its initial form, to the designation of the applicable legal order. This definition shows its limits as the methods of private international law have evolved. Boundaries between the different methods became more unclear, leading to uncertainty as to the legal regime of the material rules. We have tried, through the study of material rules of private international law, to propose a definition that takes into account their specificity but also their variety while distinguishing them from neighboring methods and, in particular, police laws. This definition has led us to a classification of material rules and to the conclusion that their legal regime should depend of the particular subcategory they belong to
Cadet, Fabien. "Les transformations méthodologiques de l'ordre public en droit international de la famille : étude comparée France/Espagne." Toulouse 1, 2001. http://www.theses.fr/2001TOU10088.
Full textOver the past twenty years ,courts of law have had to decide issues of international family law that can properly be described as a "clash between civilizations". Where litigation has an international dimension, two contradictory requirements fall to be reconciled : respect both for the foreign law involved and for the fundamental rights or national legislative policies contained in the "lex fori", under the protection of rules of exception (public policy, mandatory law and fraudulent evasion of applicable law). Case law has had to amend traditional rules of exception by resorting to objectivized criteria for bringing them into play. The present thesis compares the provisions of French and Spanish law, and attempts to identify and analyse the specific nature of such criteria, in particular with respect to a more traditional approach based on subjective rules of exception. Applying objectivized criteria meets two conditions : it introduces a hierarchic dimension into rules of exception and it justifies defining a much more proximate type of public policy
Kouteeva-Vathelot, Tatiana. "L'évolution du régime de la compétence internationale en droit international privé russe." Paris 2, 2010. http://www.theses.fr/2010PA020085.
Full textTessier, Emmanuel. "Le stade en droit public." Thesis, Paris 5, 2014. http://www.theses.fr/2014PA05D010.
Full textStadiums are places where public law cannot be overlooked. This thesis focuses therefore on the juridical regime of the so called “grands stades” (stadiums contrary to sport fields) quoted as such in the Euro 2016 commission report. The main purpose is to demonstrate interlinks between stadiums and public law. This study concentrates on national juridical issues raised by changes in stadiums and thus in laws related to it. Indeed the juridical regime of stadium property, through the wide diversity of contracts qualifying the frame for construction or renovation, defines how stadiums are managed. For a long time stadiums have been considered for public sport practices, however professionalization led to modifying this juridical regime. Urbanism and spatial planning operations prior to stadium constructions have also underlined this evolution. The global financial policy for stadium development requires high public sector intervention therefore making it also subject to public financing constraints. Stadiums gather people to watch sport events. It is important to provide a frame to avoid any excess that could lead to disturbances of public order. As a recipient of sport events, stadiums are places of commercial exploitation
Tani, Alex. "L'ordre public et la droit patrimonial de la famille : contribution à la distinction entre l'ordre public et l'impérativité en droit privé français." Thesis, Toulouse 1, 2018. http://www.theses.fr/2018TOU10043.
Full textUnlike a strongly held belief, there exists no public order inherent in family property law. Public order is a significant legal concept which should not be overused by confusing it with other limits of contractual freedom : accepted standards of behaviour, fundamental rights and, especially, imperative laws. If all public order laws are imperative, reciprocity cannot be verified : all imperative laws are not necessarily public order laws. Though it is always evasive when attempting to find out a definition, public order is inherently related to safeguarding the general interest. Accordingly, it is forbidden to give it up by anticipation and infringing it is strongly punished. Through its legal proceedings, the public prosecution is acting to prosecute any breach of public order and the judge holds the power – and further the duty – to institute ex-officio such legal proceedings. In absence of such traditional features (which are so many elements of definition), it becomes rash to retain the presence of a public order ; unless taking the risk of diverting the concept by twisting it and cancelling its distinctive landmarks. As none of such features is identified in family property law, the idea upon which a "patrimonial public order" (sometimes referred to as "matrimonial" or "succession-related") would exist, deserves to be rejected. In this respect, rules peremptorily asserted are simply imperative rules, which are not involved in any whatsoever public order implementation. Distinction between public order and imperative laws is not only theoretical, nor even semantic : it further (and especially) entails significant practical consequences. In doing so, defended thesis helps reviving the latest developments being observed in family property law (contractualisation, diversion, subjectivization, "fundamentalisation"...), while allowing to better understand shifts affecting society and family. In more general terms, it helps reconsidering relations between contractual freedom and the rule of law, by showing that there may exist, in civil law, rules which – though being imperative – do not result from the achievement of a public order
Azavant, Marc. "L'ordre public et l'état des personnes." Pau, 2002. http://www.theses.fr/2002PAUU2006.
Full textEnlightened with the reasons which drive the state to see it as essential, the notion of people statuts recovers the coherence that classic analysis deny her. Focussed on its law and order function, the institutional system comes into light. The functions of people statuts are dual. Used as a normative tool, the institution allow the state to shape the legal statuts of people and to spread the rules and values on which is built the democratic order it identifies with. Assigned to a function of identification, the category provides society as well as individuals with structural elements of identity. The one and only aim of the institutional system is to preserve these functions. In national law, inalienability and imprescriptibility are meant to be two constitutional guarantees in the service of the finalities of the category. In international law, all the means used are meant to protect constantly the models and values of national law
Selim, Ismaïl Ahmed Abdelwahab. "L'ordre public international in favorem arbitrandum : étude de droit comparé." Dijon, 2009. http://www.theses.fr/2009DIJOD006.
Full textAyissi, Manga Eugène Bertrand. "L'ordre public en droit judiciaire prive." Rennes 1, 1998. http://www.theses.fr/1998REN11021.
Full textOliveira, Carina Costa de. "La réparation des dommages environnementaux en droit international : (contribution à l'étude de la complémentarité entre le droit international public et le droit international privé)." Thesis, Paris 2, 2012. http://www.theses.fr/2012PA020002.
Full textThe reparation of environmental damages in international law concerns public and private international law. Due to the fact that efficient reparation of environmental damages is hardly achieved only by public international law, private international law methods can be used to fill the gaps of the former law field. Public international law limits are related to the difficulty of harmonising substantial environmental rules on national, regional and international context. Another reason is that it is hard to control company’s international movements and to hold them liable for damages committed. International environmental law depends on some public and private legal instruments in order to protect the environment. Public instruments such as treaties and Secretariats' mechanisms of control must work jointly with private instruments such as liability and arbitration. Private international law application is useful to organise rules from different legal orders. This methode enables the use of legal measures of one State in another State without looking for uniformity. Private international law, by the environmental function of conflict of laws and conflict of jurisdictions rules, paves the way towards a better interaction between different normative orders and between different law fields. It leads to a more effective cooperation for environmental protection