Dissertations / Theses on the topic 'Jugements criminels'
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Duvigneau-Légasse, Magdeleine. "Le tribunal du bailliage du Labourd : ses jugements civils et criminels de 1680 à 1790." Bordeaux 3, 1993. http://www.theses.fr/1993BOR30009.
Full textManchec, Karine. "Jugements sous influences : l'information catégorielle dans les situations judiciaires complexes." Rennes 2, 2000. http://www.theses.fr/2000REN20049.
Full textThis thesis comes deliberately within the scape of the judiciary and especially within the field of French law. Its objective is to tick of the complex judicial occurrences which make it necessary for people to resort to categorical information in order to pass sentence. Four experimentations (see chapters 3 and 4) allow us to put to the test the hypothesis according to which the complexity, bearing on a sentence is all about the burden of information, typified from both quantitative and qualitative angles. Within French penal proceedings, judges can consider that a crim is in fact a criminal offence, and then the choice to pass sentence upon a crime is motiveted by the fact that jurors may not easily understand the penal reading of what actually happened. The hypothesis according to which the complexity in line with the serious character of the facts and the judicial situations actually make people use categorial information for sentencing purposes is thus put to the test all along five experimentations (see chapter 5). These demonstrate that individuals, when faced with a complex judicial situation, back up their assessment for the person charged according to the category he or she belongs to. This is proof of the emergenceof a bias in their judgment. The concluding chapter too gives us the opportunity to put forward a new grading scale for judicial sentences ; worked out with a particular regard for ecological needs. The outcome of these studies provide answers to the interrogations raised by crime sentencing proceedings as freely implemented by magistrates
Volpi, Ludiane. "De l’influence réciproque du juge pénal et du juge civil." Strasbourg, 2009. http://www.theses.fr/2009STRA4040.
Full textLenoir, Constance. "Du crime à la réponse judiciaire dans les oeuvres de Dostoïevski et Genet." Thesis, Paris Est, 2013. http://www.theses.fr/2013PEST0095.
Full textCrime and its legal response have been subject to extensive analyses and publications. Few provide a pluri-disciplinary approach aiming at questioning the founding principles of the Law in this field. This is the reason why this thesis considers the criminal phenomenon, the implementation of repression measures (from the offence investigation until the definitive conviction of the culprit) and the sentence throughout literature and with a specific focus on two main authors, Dostoïevski and Genet.Their original analysis of the criminal phenomenon (crime, author, and victim) is driving the reader to question and even reconsider their definition as stated in the Law. The legal response is also subject to question as both authors insist on the fallibility of a justice dispensed by human beings. In their opinion, the trial is a mandatory step and the accomplishment of sentence necessary. However, thiers pieces of writings question the need for proportionality and humanity regarding repression
Robert, Véronique. "L' administration dans le procès pénal : contribution à l'étude du particularisme de l'administration dans le procès pénal." Paris 1, 2004. http://www.theses.fr/2004PA010319.
Full textMartire, Noémie. "Les métamorphoses des procédures traditionnelles de jugement des crimes sous la pression de l’efficacité procédurale : une approche comparatiste franco-canadienne." Master's thesis, Université Laval, 2020. http://hdl.handle.net/20.500.11794/67010.
Full text« Efficacité », « efficience », « rapidité » ou encore « simplification »… Le champ lexical du pragmatisme et de l’utilitarisme a intégré les nouvelles législations portant sur la matière criminelle. L’encombrement des juridictions, le non-respect du droit à un jugement dans un délai raisonnable et le coût de ce contentieux ont motivé les récentes transformations. Pourtant, le jugement des crimes est le fruit d’une tradition ancienne et symbolique, riche en spécificités juridiques. Qu’advient-il de ces dernières, une fois confrontées à l’objectif d’efficacité procédurale ? L’exemple comparé des systèmes français et canadien, construits sur la base de modèles théoriques différents, est révélateur. Tandis que le système français a une tendance inquisitoire conformément aux droits de tradition romano-germanique, son homologue canadien, de common law, est essentiellement accusatoire. En dépit de leurs différences procédurales classiques, il faut observer que l’exigence d’efficience a créé de nombreux rapprochements entre les deux systèmes de justice criminelle. Le potentiel de l’objectif d’efficacité, en tant que vecteur de mutations procédurales, est ainsi manifeste. Les spécificités du jugement des crimes connaissent des atténuations, et une partie du contentieux se trouve écarté des modes traditionnels de jugement. C’est à travers l’analyse de certains détails que s’observent les nombreuses transformations procédurales. Une attention particulière doit être portée à l’égard de ces constats, dans la mesure où le système juridique, en matière criminelle, est réputé être le plus garantiste. Par conséquent, cette étude vise à discerner et à comprendre le sens de ces métamorphoses procédurales. L’intérêt est majeur : souvent silencieuses, ces mutations bouleversent les systèmes traditionnels de jugement des crimes, dès lors qu’elles sont additionnées les unes aux autres.
Kastelaniec, de Laforcade Agata. "Les condamnations à de courtes peines d'emprisonnement." Paris 2, 2010. http://www.theses.fr/2010PA020054.
Full textSaetta, Sébastien. "L'intervention de l'expert psychiatre dans les affaires criminelles : de la production d'un discours à sa participation au jugement : Grand-Duché de Luxembourg et France." Phd thesis, Université Toulouse le Mirail - Toulouse II, 2012. http://tel.archives-ouvertes.fr/tel-00710892.
Full textTeixidor, Concone Emmanuelle. "L'homicide dans la jurisprudence du Conseil Souverain du Roussillon : 1660-1791." Perpignan, 2004. http://www.theses.fr/2004PERP0536.
Full textHomicide is examined through the jurisprudence from the higher judicial authority, the Conseil Souverain in France's newly-annexed county of Roussillon during the seventeenth and eighteenth centuries. The act of killing always bred interest. Every time, in every country, one of the first legislative preoccupations, however primitive, was to punish it. While it remains linked to the Judaeo-Christian notion non occides, deliberate homicide is not the only form taken by the crime. Homicide is a term covering many crimes : fortuitous manslaughter, involuntary homicide, plain deliberate murder, ambush murder, assassination, necessary homicide. The notion goes further, when we consider the status of involved persons. Homicide may double as parricide, fratricide, uxoricide or infanticide. And when the perpetrator is the victim, homicide is called suicide or duel ("self-homicide"). Even though it's only the crime as considered by special penal law, since death may be desired but not obtained, or go beyond the agent's purpose, etc. Homicide is a vastly rich notion. Thus, once the proof has been provided, its repression could not be homogenous being, in addition, largely individualized. Circumstances (time, place, felon-bound like his dementia or its minority. . . ) interact with the magistrate's decision. In a time when the law was not the primary source of rights, the Conseil Souverain's policy deserved to be studied separately and comparatively to the Kingdom's judicial uses
Fajon, Yan-Erick. "Les représentations du juge criminel dans la pensée politique française (1748-1791)." Thesis, Université Côte d'Azur (ComUE), 2019. http://www.theses.fr/2019AZUR0021/document.
Full textThis thesis on the end of the Ancien Régime extends from 1748 to 1791. This research work is an exploration of the judicial figure and its scholarly and popular representations on the given period. Thus the philosophers of the eighteenth century contributes largely through their political theories to a theoretical renewal of judicial representations. This renewal is also accompanied by literary fecundity in the utopian genre. This is proof that the criminal question is a political question on the eve of the French Revolution.This work of judicial renewal continues with the National Constituent Assembly between 1789 and 1791. It continues in a practical angle. It is probably here that lies the break between the constituent deputies and the Enlightenment philosophers. The former will put in place a judicial system where only logic exists. This system is motivated by a hatred of the 18th century criminal court. The second, the philosophers, criticized the judge for the sake of the need for freedom. They are in this respect the extension of humanism and the precursors of liberalism
Esnard, Catherine. "Rationalités et jugement social : une étude des déterminants contextuels du jugement social policier." Bordeaux 2, 2001. http://www.theses.fr/2001BOR20870.
Full textShould the question of validity of evaluative behavior and social judgments expressed daily by "professionals of the relation in others" be measured by normative criteria of a scientific nature ? In reexamining the classic paradigms of social perception, social cognition thus turns to a multidimensional conception of the modes of knowledge as well as towards new paths of reflection for "rationality of the inferences" (Drozda-Senkowska, 1995), logics of social thought and strategies of social judgment. In this perspective, this research has for objective the analysis of certain contextual factors susceptible of conditioning acceptance of one of the two main dimensions of rationality : scientific logic and pragmatic logic, in the elaboration of professional social judgment. This problem is applied here to the social judgment expressed within the framework of a police penal inquiry. This quasi-experimental study, using a methodology of a fictitious case, concerned a population of 252 police officer patrolmen. Results show a predominance of pragmatic police logic characterized by a hypothesis confirmed not only based on a procedural interpretation of the facts but also on first impressions of others. This pragmatic strategy is modulated benefiting an analytical strategy of a fase hypothesis when the context of judgment mobilizes cognitive and motivational factors connected to the accountability and social visibility of the judgment. It is reinforced in its personalized dimension when the context mitigates these same factors. Definitively, only the contingent factors in the context of judgment bring to date a cognitive flexibility of the policemen while their job related (rank, seniority) and ideological particularities have only a weak impact on the rational strategies of police social judgment. As hypothesis, a modelling of the internal dynamics of professional social judgment is proposed
Togola, Yacouba. "La motivation des décisions de justice pénales." Thesis, Université Paris-Saclay (ComUE), 2016. http://www.theses.fr/2016SACLS125.
Full textWhat evokes motivation? How criminal law grasps motivation of judicial decisions ?The concept of motivation refers to several aspects that change its meaning depending on the role assigned to the judicial function. While it is understandable that a single approach does not compel, motivation should be reconsidered.Motivation is in fact generally perceived as a litigation instrument for the judge, the main aim being to limit its arbitrary power. To this end, a set of rules are binding on the judge. The review of these rules in the field of criminal law leads to an unsatisfactory result. If motivation is imposed on the judge in certain judicial decisions, it is however rejected in others, and a single criterion justifying such a distinction may not appear relevant. The objective nature of its contents is marked by gaps which feed the subjective approach to the motivation. It is when it is about method that the bypassing is the most visible : the motivation with unique sentence, the copy and paste or the practice of the pre-drafted motivation. Moreover, even exercised by the European Court, control of motivation leaves the criminal judge many appreciation margins, even sometimes a total freedom. Concerning the analysis of the criminal decisions, the right of the motivation ends in a contrasted result.Should we then go further and beyond this litigating approach of motivation? The answer is obviously positive. To better safeguard the interests of citizens, motivation must be transformed. This transformation is marked by an increasing connection between motivation and fundamental human rights. The motivation turns out to be the condition for the exercise of the rights of defense, while it fits into the category of the right to fair trial. In the dynamics of this evolution, the motivation - with the aim of the understanding and of the acceptance of the decision by the citizen - has to occupy a central place. It involves to glimpse, beyond rules compulsory for the judge to motivate the decision, certain improvements in order to achieve the recognition of a genuine right of the defendant for the motivation of the decision, its decision
Lapierre, Anne-Sophie. "La motivation du jugement pénal." Thesis, Toulon, 2015. http://www.theses.fr/2015TOUL0097.
Full textIn the nineteenth century, the obligation to state reasons of the judge, slow and difficult conquest due to its strong link with the authority of justice, was presented as "one of the happiest conquests in the administration of justice". Introducing the revolutionary era to fight against the arbitrary, meet four words to state "it must be motivated." Understood as the simple proof of the judge’s mobile, she apréhende as a pure deductive logic. However, various upheavals in our society reveal the many facets of this principle. The influence of the European Court brings out the motivation of its procedural straitjacket where the simple justification turns into persuasive explanation, to become a strong act of speech. Parallèment, the law loses its sacredness. The increasing complexity seems to show its limits, at a time when our changing society claims a more democratic justice. Motivation becomes a condition of legitimacy of judicial decisions and judge the legitimacy of quality. Studied in criminal matters, it is particularly suitable because of its particular role within our society, inviting our contemporary Justice to consider on the contrary, the subjective nature on emotions. Simple procedural obligation attached to the defense of rights, the application for knowledge demonstrates the emergence of an autonomous obligation, editorial torn between technical and political-social tool, pushing our reflection on the role of criminal justice. Appearing in crisis, this principle far from dwindling, turns out to be not the mirror of criminal justice need to be redefined
Fréchette, Julien. "Jugement clinique vs. évaluation actuarielle du risque de récidive criminelle : le cas mystérieux de la dérogation clinique." Master's thesis, Université Laval, 2021. http://hdl.handle.net/20.500.11794/67971.
Full textAssessing and managing criminal recidivism risk are now common practices in Western corrections. In Canada, the risk management model is firmly established along the guidelines set by the risk-needs-responsivity model (RNR; Andrews, Bonta & Hoge, 1990). Various tools have been designed to guide practitioners in the evaluation of RNR components, including the Level of Service and Case Management Inventory (LS/CMI; Andrews, Bonta & Wormith, 2004). This instrument is based on risk assessment principles prioritizing the actuarial method to clinical judgment. However, the tool's developers allowed, to some extent, a subjective judgment from the assessors to modify the criminal recidivism risk level in certain circumstances. This discretion granted to assessors to adjust actuarial risk is referred to as the clinical override. Although the clinical override represents an important discretion within the criminal justice system, few studies have been conducted on this practice. For the moment, studies carried out address almost exclusively its predictive validity. Indeed, the scope of previous studies limited to the predictive validity does not allow the understanding of mechanisms surrounding the riskbased override. In light of the scientific literature, although the override is a widespread practice, it remains unknown in terms of prevalence and utilization contexts. Using data from a sample of Quebec inmates and probationers assessed featuring the LS/CMI between 2008 and 2011 (n = 19,710), decision tree analyses were conducted to identify profiles of overridden offenders. The results suggest that the decision to override is extremely rare and seems to be mainly influenced by the nature of the index offense and the risk score prior to the override.
Perrin, Maxence. "Essai sur la compétence matérielle des juridictions pénales de jugement." Thesis, Lyon 3, 2013. http://www.theses.fr/2013LYO30027/document.
Full textA core notion in criminal law for the first time put into perspective within the framework of a detailed research work. The assessment of that theme is deserved as this competence is subject to consequences. By evaluating it in extenso, latent incidences find a legitimate place as much in the field of public and private law than in the procedural sphere or in the criminal law. The key point of that theme sets up the assessment of causes and effects in the study of the jurisdiction's evolution in criminal matter.At the time of the confrontation between several necessities of the repressive justice which are immanent to such a study, tendencies between equality and individualization, fair time and swiftness, or legality and equity are joining them ; following the example of those challenges, the jurisdiction is evolving.This study was led under new auspices throughout the writing of that work.The topicality on that theme remains ardent.It should be noted that the jurisdiction of courts of law can be the object of prospectives. If justice's necessities, which seem a priori antagonists, reveal contradictions, middle ways can be taken into account in a way to strike a balance
Wang, Hongyu. "Etude comparative de la procédure avant jugement en procédure pénale franco-chinoise." Université Robert Schuman (Strasbourg) (1971-2008), 2007. http://www.theses.fr/2007STR30014.
Full textThe procedure before criminal trial refers to all preparatory activities before the trial. In the cases of public prosecution, this procedure, initiated by judicial department, consists of investigation, prosecution and defence. His generated when criminal prosecution develops to a certain stage. The pretrial proceedings of two big legislative systems demonstrate a certain tendency of inter-absorption and fusion as the result of the inner rules of criminal prosecution. In addition, before the court trial, both complicated investigation and prosecution are required. During this period, a series of detective activities would be organized by national judicial department, including the special investigation, evidence collection arid suspects’ arrest; meanwhile, the department would judge whether the case is qualified to be render to the court. In this sense, the pretrial proceeding is closely associated with the right of both suspects and plaintiffs, and connected to the check and balance of three departments. That is why it stands such significance in the entire procedure. Through the comparison, due to the different historical traces of China and France, it is easy to discover their respective characteristics of pretrial proceeding, such as the main body of the prosecution, starting mode, investigation, judicial control, prosecution system and defence system
Pendaries, Yveline. "Les procès de Rastatt : le jugement des crimes de guerre en zone française d'occupation en Allemagne de 1946 à 1954." Paris 10, 1993. http://www.theses.fr/1993PA100083.
Full textFrom 1946 to 1954, in the French zone of occupation in Germany, the search of war criminals by the French occupation authorities and their judgment in application of the law no 10 issued on 20 December 1945 by the allied control council headquartered in Berlin, intended to punish war crimes, crimes against peace and against humanity by the tribunals of the military government until 1948, then by new juridictions more in line with the French usages. Some twenty important trials have taken place in Restatt: trials concerning the concentration camps of Wurttemberg and Neckar - sub-camps of Natzweiler -, of Neue Bremm, Porta, Leonberg, Hinzert, trial againts Fritz Suhren, chief of the Ravensbruck camp. . . But the most important trial was undoubtedly the one of Hermann Rochling, the magnate of metallurgic industry in Saar, which mainly addressed economics
Peter, Marc. "L'appropriation des avoirs criminels : les saisies pénales spéciales garantissant la peine de confiscation, une étape majeure pour une stratégie pénale patrimoniale repensée ?" Thesis, Aix-Marseille, 2018. http://www.theses.fr/2018AIXM0285.
Full textIn France, the money-laundering and trafficking fight is based on a apprehension of the illicit assets strategy. French law give to magistrates, and under conditions to investigators, very offensive prerogatives to seize property assets very early in the proceedings and regardless of the property and the presumption of innocence rights. However, the law largely reformed law of seizures by creating special criminal seizures, it did not provide a framework for confiscation enforcement. Indeed, confiscation remains the pivot of criminal property investigation, although special criminal seizures are now the driving force. The absence of a post sentential procedure is likely to open a new space of opportunity for the convicteds to dissipate part of their property. This is the reason why French criminal law should be updated to give justice a complete framework to ensure that crime does not pay
Wittmann, Valérie. "Les interférences entre instances civiles et pénales parallèles : contribution à l'étude de la cohérence en matière juridictionnelle." Thesis, Dijon, 2011. http://www.theses.fr/2011DIJOD002.
Full textAWhen civil and penal proceedings occur in parallel, there is a risk of conflicting judgments, which positive law traditionally precludes by making penal proceedings paramount and by deferring adjudication on article 4 of the Criminal Code. This double mechanism, which ensures supremacy of criminal proceedings over civil proceedings, is quite singular. Indeed, it guarantees that the justifications for the decisions made are coherent. In other contentious matters, positive law pays little attention to such concerns. Moreover, it is unilateral, since it exclusively favours criminal law decisions. Though this supremacy was initially justified by the notion that criminal law decisions guaranteed truth, analysis has shown that this is largely debatable. First of all, with regard to the foundations themselves, this mechanism of course ensures a certain coherence of the matters judged, but maintains an appearance of truth rather than a guarantee of truth. Yet, precisely, the coherence of the justifications for distinct judgments is only legitimate insofar as it seeks to determine the truth. Then with regard to the system itself, the supremacy of criminal over civil proceedings interferes with the freedom of the civil judge, and violates by its absolute nature, the adversarial principle, while the systematic deferral of adjudication slows down procedures and undermines the objective of celerity. In order to remedy these drawbacks, legislators and jurisprudence have made an effort to limit the most damaging effects of this principle, by dissociating civil from repressive concepts, then by compartmentalising each within strict limits. Nevertheless, the objective of celerity finally won the day and legislators, through the law of 5th March 2007, retained the compulsory nature of the deferral of adjudication of article 4, but only with regard to civil action for damages resulting from the offence. The new law now establishes the principle of independence of parallel proceedings, even though it carries a risk of conflicting results. For the time being, however, the jurisdictions take into account the risk of conflicting results and have maintained the supremacy of criminal proceedings over civil proceedings. It is nonetheless desirable to revise the recent law, and to incorporate in the reasons which are necessary support for the criminal decision, the value of a refragable presumption of truth. The specific nature of decisions in criminal proceedings would thus be taken into account, and the sometimes antagonistic requirement of autonomy of the different jurisdictions, the coherence of the matters being judged, and the search for truth would thus be preserved
Ferracci, Ange-Bernard. "Evaluation comparative de l'expertise psychologique et psychiatrique : vers une méthodologie systématique de l'évolution." Phd thesis, Université Toulouse le Mirail - Toulouse II, 2012. http://tel.archives-ouvertes.fr/tel-00797850.
Full textDjeatsa, Fouematio Lionel. "L'efficacité de la justice répressive à l'épreuve du contradictoire." Thesis, Lyon 3, 2011. http://www.theses.fr/2011LYO30001.
Full textSafeguarding the interests of society implies a necessary but also effective enforcement. The latter can be provided efficiently by a search of evidence relating to the commission of an offense in order to know the author. This is the issue of criminal proceeding. However, if the protection of public peace authorizes and legitimizes this approach, the latter can not happen without limitations at the expense of individual rights. Therefore, a compromise must be made between apparently contradictory interests. Finding a balance between these two interests has had multiple expressions by legislative developments, the latter has shown a constant swing between these imperatives. There are situations in which it is necessary that justice officials respond. Thus, is justified the use of a body of specific rules by which the criminal justice response can be accomplished with minimal interference. The strengthening of the judicial police and procedural simplification, to name but a few, seem to be fully justified. However, it is reasonable to ask whether the increased role of the organs of the procedure should not be surrounded by limits to ensure that parliament’s objective, and only that objective. On the occasion of a comprehensive reflection of the place of the defendant during the criminal trial, this study leads first to question the scope of various reforms and the role of increasingly enhanced organs the procedure to be parallel dynamics can increase the pre-existing rights or create new rights of defense. The set of powers and rights which profiles the trial to give way under influence of the European Convention on Human Rights to reveal an adversarial criminal trial. Simply contradictory, but fully contradictory
Kardimis, Théofanis. "La chambre criminelle de la Cour de cassation face à l’article 6 de la Convention européenne des droits de l’homme : étude juridictionnelle comparée (France-Grèce)." Thesis, Lyon, 2017. http://www.theses.fr/2017LYSE3004.
Full textThe first party of the study is dedicated to the invocation of the right to a fair trial intra and extra muros and, on this basis, it focuses on the direct applicability of Article 6 and the subsidiarity of the Convention and of the European Court of Human Rights. Because of the fact that the right to a fair trial is a ‘‘judge-made law’’, the study also focuses on the invocability of the judgments of the European Court and more precisely on the direct invocability of the European Court’s judgment finding that there has been a violation of the Convention and on the request for an interpretation in accordance with the European Court’s decisions. The possibility of reviewing the criminal judgment made in violation of the Convention has generated a new right of access to the Court of cassation which particularly concerns the violations of the right to a fair trial and is probably the most important step for the respect of the right to a fair trial after enabling the right of individual petition. As for the weak conventional basis of the authority of res interpretata (“autorité de la chose interprétée”), this fact explains why an indirect dialogue between the ECHR and the Court of cassation is possible but doesn’t affect the applicant’s right to request an interpretation in accordance with the Court’s decisions and the duty of the Court of cassation to explain why it has decided to depart from the (non-binding) precedent.The second party of the study is bigger than the first one and is dedicated to the guarantees of the proper administration of justice (Article 6§1), the presumption of innocence (Article 6§2), the rights which find their conventional basis on the Article 6§1 but their logical explanation to the presumption of innocence and the rights of defence (Article 6§3). More precisely, the second party of the study is analyzing the right to an independent and impartial tribunal established by law, the right to a hearing within a reasonable time, the principle of equality of arms, the right to adversarial proceedings, the right of the defence to the last word, the right to a public hearing and a public pronouncement of the judgement, the judge’s duty to state the reasons for his decision, the presumption of innocence, in both its procedural and personal dimensions, the accused’s right to lie, his right to remain silent, his right against self-incrimination, his right to be informed of the nature and the cause of the accusation and the potential re-characterisation of the facts, his right to have adequate time and facilities for the preparation of the defence, including in particular the access to the case-file and the free and confidential communication with his lawyer, his right to appear in person at the trial, his right to defend either in person or through legal assistance, his right to be represented by his counsel, his right to free legal aid if he hasn’t sufficient means to pay for legal assistance but the interests of justice so require, his right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him and his right to the free assistance of an interpreter and to the translation of the key documents. The analysis is based on the decisions of the European Court of Human Rights and focuses on the position taken by the French and the Greek Court of Cassation (Areopagus) on each one of the above mentioned rights
Reix, Marie. "Le motif légitime en droit pénal : contribution a la théorie générale de la justification." Thesis, Bordeaux 4, 2012. http://www.theses.fr/2012BOR40055/document.
Full textIn many legal disciplines, the legitimate reason is a model of justification of acts. The legitimate reason prevents the enforcement of the law, either by creating a right or by exempting someone from a duty. Despite an unprecedented boom, criminal law is hesitant about this vague notion. In order to justify judges' assessment margin, the legitimate reason is commonly considered as a motive. This accentuates the confusion between objective and subjective causes of irresponsibility. The formal approach of the justificatory process is inadequate, making the process increasingly biased. The analysis of the legitimate reason requires a re-examination of the justification theory using a solid understanding of unlawfulness which can help standardize its implementation. The study of the legitimate reason’s justificatory function allows a better understanding of the flexibility of its implementation requirements. The legitimate reason reverses the presumption of unlawfulness on which liability is based. The cause of liability is conditioned by the value judgment made about the offence, whereas the judgment of the reality of the offender’s intention is the condition of his imputation. The legitimate reason stems from circumstances that are external to the offence, and which enable the review of its lawfulness. The objective nature of the legitimate reason is aligned with the fact that it exempts from liability in rem and not in personam. However, the requirements for its application seem exceptional to the common law of justification in two regards: its broad criteria and its narrow field. It is limited to offences of abstract risk that protect secondary values for which the presumption of unlawfulness is artificial. The defendant must prove the legitimacy of his act whereas the abstract legitimacy of the suppression is unconfirmed. The expansion of this dispensatory field of suppression reveals an inadequate control of its abstract necessity. In any case, bringing up legitimate reason is useless as it is implicit to any offence and is considered as a general model of justification. It leaves the judge free to assess the necessity of the penalty on a case by case basis, as the law, by nature, cannot resolve all value conflicts. The post facto justification of socially necessary offences or even trivial offences reinforces the authority of the law by ensuring an enforcement that is aligned with the law's aim of protecting values
Lestrade, Éric. "Les principes directeurs du procès dans la jurisprudence du Conseil Constitutionnel." Thesis, Bordeaux 4, 2013. http://www.theses.fr/2013BOR40033/document.
Full textIn spite of a relatively low number of written dispositions dedicated to justice inside of the body of the Constitution of October 1958 4th, the constitutional Council, while updating this text through the Declaration of Human Rights, contributed to the development of a procedural constitutional law, which is structured around guiding principles. Those principles can be classified within three different categories : two major categories depend on the trial actor that is primarily concerned, either the judge or the parties; a third and additional category pertaining to procedural protections, fosters the essential qualities of the judge and secure the protection of the parties’ rights. A gradation of the requirements of the constitutional Council is discreetly perceptible between the first two categories of principles, and more easily identifiable between those first two categories and the last one. This decreasing scale of “density” yoked to the trial guiding principles highlights a genuine judicial policy when it comes to procedural constitutional law, emphasizing access to the judge, whom is given essential qualities in order to achieve its judicial duty. However, the action of the French constitutional judge, as satisfactory as it is towards the rights of the trial, would easily support the intervention of the constituent power in order to update Justice’s constitutional status