Dissertations / Theses on the topic 'Office du juge pénal'
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Yazici, Marie-Hélène. "La motivation : enjeux juridiques et de pouvoir pour le juge pénal." Thesis, Paris 1, 2016. http://www.theses.fr/2016PA01D029.
Full textFor the researcher’s perspective, the complex dimension of motivation offers almost unlimited scope for investigation. In criminal matters, the question of motivation is an issue of concern for both the legislator and the judge. By constantly adding legal requirements regarding the motivation, the legislator urges judges and prosecutors to systematically provide the legal and factual reasons that are the basis of their decisions. The legislator enacts such obligations in order to confine, or even strongly reduce, the margin of discretion of the criminal judge who is in charge of normative power, even in the context of interconnected lawmaking processes. This attitude reveals a desire to monopolize the lawmaking process. However praiseworthy the intention may be from an institutional point of view, it lacks realism. The legislator is moving away from the efficiency and quality constraints that the criminal judge is subjected to. As the motivation historically and firstly derives from practice, the criminal judge easily adapted to his numerous obligations regarding this matter. Benefiting from a key communication tool, he launched his brief and peremptory practices which led him to take part to the mechanism of creation, and often, destruction of law. If the judge’s participation in the production of the law enhances its quality, the judge’s lack of democratic legitimacy remains and forces him to look for a communication strategy based on persuation instead of a purely assertive approach
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
Perucca, Bruno. "L'impartialite du juge pénal." Nice, 1997. http://www.theses.fr/1997NICE0018.
Full textNiquège, Sylvain. "Juge administratif et droit pénal." Pau, 2007. http://www.theses.fr/2007PAUU2012.
Full textRelationships between criminal law and administrative trial give various illustrations. Incompetence of the administrative judge to take cognizance of acts linked with criminal procedure is a classic example. Generally, the whole criminal case’s elements can be used by the parties or the judge during the administrative case. Criminal law also has an impact on the administrative trial. For instance, criminal administrative authorities have to respect individual guaranties attached to the criminal procedure. Could it be concluded to a growing influence of criminal law on administrative judge’s action, or even on administrative law? This idea, commonly evoked, corresponds to a conflictual and outdated way of grasping relationships between jurisdictions and their respective rules. Certainly, constraint’s mechanism, often accepted, partly rules these relationships. Nevertheless, other dynamics such as indifference, influence, and strategic use of criminal law’s resources also characterize them. Respect of criminal judge’s function does not prevent administrative judge from carrying his own one, sometimes by using criminal law. Rather than restricting administrative judge’s action field, criminal law appears as a real resource
Salomon, Eva. "Le juge pénal et l'émotion." Thesis, Paris 2, 2015. http://www.theses.fr/2015PA020003/document.
Full text«Commandment shall belong […] and one shall obey to a faceless order, which may be expected, given its impersonality, to rule without passion and to be listened to without anger»1220. To reach such an aim, practice and criminal procedure try to erase from judgment «passive» emotions as well as some «active» ones that are not based on any logical thinking, since they paralyse the judge's autonomous reasoning. However, among such hounded emotions, only those which can be genuinely controlled by their materialisation are likely to be avoided and to involve the judge's responsibility. Furthermore, one has to take into account the judge's self-discipline by making him aware of these issues thanks to deontological rules. Nevertheless, and despite the fear of arbitrariness that emotions might trigger, the right administration of justice cannot cast aside every emotional consideration: a judge perceives emotions such as the methodological doubts that are necessary to his judgment; he must also take into account the ones felt by others. As a result, within the space left for emotions, a magistrate tries to regulate those which legitimately survive. A judge is ultimately brought back to his status of social being, he cannot escape the emotions which he has integrated through his socialization. He represents social emotions and stays in tune with the values they reveal. The contribution of these emotions to the final decision is legitimised by their representativeness. This legitimacy finally spreads out to the judge's decisions and actions
Volpi, Ludiane. "De l’influence réciproque du juge pénal et du juge civil." Strasbourg, 2009. http://www.theses.fr/2009STRA4040.
Full textAl-Amiri, Samer Saadoun. "Le pouvoir discrétionnaire du juge pénal." Thesis, Montpellier 1, 2013. http://www.theses.fr/2013MON10009.
Full textAt the various stages of the proceedings, from the start of the trial until its closure and the pronunciation of the verdict, the judge has a specific power called "discretionary". Such power is not subject to the control of a supreme court. The latitude of discretion of the judge raises several issues to determine its legal nature and essence. At several occasions, the extent of this power has also created a confusion with some related concepts, such as arbitrary power, sovereign power and the intimate conviction of the judge. In addition, to prevent any risk of arbitrary power, the legislator has imposed the Criminal Court, under Law No. 939-2011 of 10 August 2011, to provide a motivation of its sentence. Notwithstanding this obligation, the scope of such discretion remains wide during the trial. Consequently, it greatly affects the principle of impartiality of the judge and the principle of equality of citizens before the law. In this light, we consider appropriate to study, firstly, the extent of compatibility between this power and the ideological concept of justice, and the impact of his personal view to implement the justice. Secondly, we emphasize the exercise of the discretionary power by the judge with regard to the rules of evidence and the choice of sentence. The study also highlighted some foreign and Arab legal systems
Barges-Bertocchio, Marie-Hélène. "L' hôpital public confronté au juge pénal." Aix-Marseille 3, 2005. http://www.theses.fr/2005AIX32054.
Full textSalgado-Fernandez, Liliana. "Le juge pénal chilien : étude de droit comparé." Toulouse 1, 1986. http://www.theses.fr/1986TOU10033.
Full textJustice holds an eminent position in a modern society in which the state has the responsibility for law and order. This study enables us to compare the judiciary institutions of two countries, France and Chile, which are not only different by their development degrees and cultures but also by their own traditions. This research is firstly devoted to analyzing the structure of the judiciary power, a fundamental basis of the state institutional organization. After a brief report of the fundamental principles of the administration of justice, we analyze the different jurisdictions set in both the laws: the common law jurisdiction and the jurisdiction of an exceptional court. A great deal is said about their compositions and their procedures but also about their competences. Then we deal with the persons who carry out the working of justice and with the way of administering the repressive justice. The study of juridical articles of the magistrate enables us to bring the state role and its consequences forward. The last part of this study is devoted to the machinery of repressive justice. This study of the three essential stages in penal case: the prosecution, the preliminary investigation and the trial, enables us to point out the failures and the inadequacy of the Chilean penal law which has not adopted the principle of the repressive justice separation. Thus a single judge must dispense justice
Landry, Mickaël. "Le mineur et le juge pénal au XIXème siècle." Bordeaux 4, 2003. http://www.theses.fr/2003BOR40025.
Full textHama, Kadidiatou. "Le statut et les fonctions du juge pénal international." Thesis, Dijon, 2010. http://www.theses.fr/2010DIJOD003.
Full textThe emergence of international criminal judge is the result of the compelling will the international community to punish serious violations of international humanitarian law. By his capabilities, international criminal judge has become a key player on the international stage. He reconciles the requirements of fair trial and the protection of fundamental human rights. Guarantor of human dignity, his universal mission contrasts with the difficulties in cooperation part of his community. Why this reticence towards him? Has he an autonomy in relation to the States? How is he impartial faced with crimes their human consciousness? Who is - he? , has he a status fits his functions? This study attempts to provide answers to these questions by an analysis of statutory characteristics of international criminal judge and functions in which he draws his power and enabling it to operate justice worldwide taking into account the diversity of international criminal jurisdictions
Eudier, Frédérique. "Ordre public substantiel et office du juge." Rouen, 1994. http://www.theses.fr/1994ROUEL197.
Full textThe aim of this thesis is to study the powers of the judge (court judge and arbitrator) with regard to the sanctionning of violations of substantial public policy in civil procedure. The first part is concerned with the nature of the fonction of the judge who must apply the peremptory rule which has not been stated by the litigants unless this rule is not based on the specific facts arising from the claims made by the parties. The second part deals with the limitations of the function of the judge. The latter must settle the dispute within the procedural framework traced by the parties and cannot modify the subject of the litigation, moreover he must respect the principle of full argumentations with cross examination. The judge must also take into account the possible waiver of his rights by the titular
Sermsilatham, Pramote. "Le rôle du juge pénal : étude comparative en France et Thaïlande." Thesis, Aix-Marseille, 2016. http://www.theses.fr/2016AIXM1048.
Full textIn France, similar to Thailand, the judge appears as a key role in a criminal trial. Traditionally, the French criminal procedure was described as an inquisitorial system where the judge plays an active role whereas the Thai criminal procedure was depicted as an adversarial system where the judge plays a passive role. Presently, the concepts of the criminal proceedings in these two systems have seemingly mingled. However, the somewhat mixed system is still far from presenting a uniformity in criminal proceedings between the two countries due to the difference between inquisitorial and adversarial system which characterizes it. Indeed, the role of the judge in France is distinct from that in Thailand, thus, induced to the interest and the challenge of the comparison.The first part of this thesis is to study the comparative framework of the judiciary. This study firstly relates to the organizations of criminal courts and composition of the courts. We then study the rules on recruitment procedures and the status of judges in the two systems. The second part is devoted to the comparative study on the role of the judge in the criminal proceedings. This comparison focuses on the judge's role in stages both before and after trial. Throughout this research, we will also study a number of law reforms regarding the judiciary structures of both countries.This comparative study of French and Thai systems on the role of criminal court judge leads to an exchange of experiences between the two different legal systems
Lebrun, Geoffroy. "Office du juge administratif et questions préjudicielles : recherche sur la situation de juge a quo." Thesis, Bordeaux, 2014. http://www.theses.fr/2014BORD0261.
Full textPreliminary issues challenge the role of the administrative law judge who formulates them.They are regarded as being accessory to the principle case at bar. They may even be perceived assecondary issues. This study of administrative litigation, based on a systematic analysis ofadministrative case law, aims to establish the opposite. Preliminary issues are characterized by theirdiversity as well as by their influence on the lawsuit, however, they are often perceived as useless andcumbersome procedural complications aiming to delay the resolution of the dispute. This study aimsto explicit the process by which the administrative law judge builds a preliminary issue and what is thelegal foundation of such an issue. From this angle, albeit the fact that the parties to the main disputeplay an essential role, it is the judge, who mainly retains the power to formulate the preliminary issue.This analysis challenges the traditional portrayal of preliminary issues as paralyzing the judicial“office”. To the contrary, far from immobilizing the “office of the judge”, an in depth study of positivelaw reveals the extensive powers that the judge a quo possesses with regards to the case at bar.Finally, the reception by the judge a quo of the preliminary ruling corresponds to a sharing of juridicalsovereignty implying the passing of a juridical act emanating from a process of co-decision. Thisstudy aims to shed light on the functioning and the complexity of a mechanism rarely examined fromthis angle. This study equally allows for an exploration of the main legal issues relating to the judicialfunction and the “Office” of the administrative law judge when placed in the situation of judge a quo
Dahraoui, Omar. "Le pouvoir discrétionnaire du juge en droit marocain." Perpignan, 2004. http://www.theses.fr/2004PERP0548.
Full textThe first part of thesis focuses on the discretionary power of penal judge in regards to the qualification of criminal act, punishment evaluation (Chap. I) as well as evidence (Chap. II). As for the second part of work, it deals with the judge summing up power in contractual field, delictuel civil responsability (Chap. II) under the supervision of the supreme court
Duparc, Caroline. "Du rôle respectif du juge et des parties dans le procès pénal." Poitiers, 2002. http://www.theses.fr/2002POIT3017.
Full textNober, Ophélie. "L'encadrement du raisonnement du juge des faits au sein du procès pénal." Master's thesis, Université Laval, 2017. http://hdl.handle.net/20.500.11794/27461.
Full textDiakite, Médy. "Le médecin devant le juge (pénal et civil) en droits malien et français." Thesis, Reims, 2017. http://www.theses.fr/2017REIMD007/document.
Full textThe Republic of Mali is a former French colony. Consequently, there are similarities between French and Malian law as regards the level of the definition of liability, whether criminal or civil, applicable in medical matters and the corresponding penalties. But in practice, the application of these notions is not done in the same way in both countries. This difference in application is due to social, cultural and economic reasons. To illustrate the points of convergence and divergence between these two legal systems, we have analyzed medical liability in both countries on the basis of criminal, civil and ethical provisions. At the end of this study, we made suggestions to improve the Malian law in the image of French law which has undergone enormous changes. We have also proposed the adoption of a code that will better address all aspects of medical liability, taking into account traditional medicine
Alliez, Camille. "L' office du juge en matière de crédit à la consommation." Montpellier 1, 2008. http://www.theses.fr/2008MON10047.
Full textThe consumer credit is a contract making it possible to the consumer to finance the purchase of consumer goods without having the funds necessary. This contract which especially developed with the consumer society during the second part of the XXth century rests on a relation unbalanced between a financial institution and a consumer. The question of “the office of the judge as regards consumer credit” has arisen for a few years, because of the importance of the contentious matters which this unbalanced contract causes, often presented like a factor of over-indebtedness. It is advisable to raise the question of the intervention of the judge in this contract (Left 1) before studying the methods of this intervention (Left 2). The judge “d'Instance”, exclusively qualified on the matter, indeed is led to raise office certain means of defence of the failing borrower (often absent from the debates), as the irregularity of the preliminary offer of credit or the preclusion from the action in payment, step which is not validated by the Supreme court of appeal : the ignored rules would not concern a law and order of protection, which can be discussed. In the field close to the abusive clauses, the Court of Justice of the European Communities recognized with the judge the capacity to seize office of the abusive character of a clause contained in a contract of loan on personal property. In several recent judgments, the Court of Justice of the European Communities did not decide with all the clearness awaited on the precise question of the office of the matter judge of consumer credit, but the recent intervention of the legislator in article 34 of the law n° 2008-3 of January 3 2008, made it possible to clear up the situation by granting to the judge the possibility of raising of office non-observance of the provisions of the Code of consumption. This whole of given testifies to the acuity of the problem and its national dimension as well as Community
Somda, Laurent Saâtieme. "La conscience du Juge : Étude comparée de la certitude morale en droit canonique et de l'intime conviction du juge en droit pénal français." Thesis, Université Paris-Saclay (ComUE), 2018. http://www.theses.fr/2018SACLS097.
Full textIn the exercise of his office, the judge is constantly struggling with the law and his conscience. This reality is not peculiar to our time. It is a constant in judicial history. According to the times in history, the judge's conscience has not always occupied the same place. This oscillation of the place of consciousness in the act of judging shows both a concern for justice and an ethical concern. Despite the attempts of positivist and law-centrist doctrines to mitigate or even dispel the question of the judge's consciousness of the judicial sphere; it remains intact, even more so today with the increasing complexity of certain cases. The ‘righteous’ and the ‘conscientious’ are a viscerally linked couple but unfortunately it is a couple in "difficulty", where the law does not always triumph and where the conscience does not always have good press with regard to the subjective dimension which characterizes it and to which it is very often reduced. If this question has so far been the subject of an abundant literature in both French and Canon law, I believe that it has been essentially approached either from the angle of secular law or exclusively Canon law. To our knowledge, no comparative study has been made on this subject. Hence the interest of our study. We therefore propose in this investigation a comparative study of the judge's conscience in both French criminal law and Canon law through respectively the concepts of ‘intimate conviction’ and ‘moral certainty’. In French criminal law, judges and jurors, in accordance with art. 353 CPP must judge by referring to their intimate conviction whereas in the Canon law the judge cannot; whatever the litigation pronounce in his sentence that after having acquired according to c. 1608, CIC/83 "moral certainty" about the truth of the facts. "Intimate conviction" in French law and "moral certainty" in Canon law are two forms of manifestation of the judge's conscience. We therefore wonder whether "moral certainty" is in canon law what the "conviction" is in French criminal law. Through this comparative study we wish to subtract the judgment according to the consciousness of the caricatures of which it is the object, and to highlight the complexity of the office of the judge. At the heart of the debate about the conscience of the judge is the entire office of the judge that is at stake. Judging is an art that mobilizes the whole person of the judge and highlights his authority through a ritualized perspicacity and prudence. The conscience of the judge - whose manifestation is expressed under the terms of intimate conviction and moral certainty respectively in the French and canonical legal systems and whose risk of arbitrariness is so commonly apprehended by the public - is a pledge of justice and truth as much as it is subject to the test of judicial ritual. If our contemporary society rebels to the idea of consciousness – seen as an outset to the exclusively moral and subjective sphere -, our investigation aims to demonstrate that the conscience of the judge as understood in the canonical and French legislation has a precise technical meaning, which cannot be locked in any normativity
Ghnassia, Jean-Philip. "Le juge civil à la recherche de la mesure d'instruction idoine." Strasbourg, 2009. http://www.theses.fr/2009STRA4020.
Full textSout, Tahiri. "La protection du fonctionnaire marocain." Thesis, Strasbourg, 2013. http://www.theses.fr/2013STRAA006.
Full textThe moroccan functionary is the subject of civil service law expressed with the general stature of public function (S.G.F.P.). In same time, he stand more positions in penal law as a responsible or victim of breachs of law. Because the terms of article 2 S.G.F.P. from 24 February 1958 and article 224 penal law, the civil servant protection is only applicated for the functionary. Just like an other person, the functionary is a physical person with fundamental, civil, moral and material rights. These rights must be protected from the administration as an effect of civil service position. For a better protection of the civil servant, it is necessary to combine all forms of protection prescribed by moroccan legislator: statutory, politic, financial, penal and social protections are concerned. These protections give advantages in the career of the functionary which are balanced with working responsabilities face the state. So the civil servant and the public office form two different and unequal attributes. The existence of one without the other is a legal myth because they are in narrow concordance. Consequently, this study show that the protection of the function go with the protection of the civil servant and vice versa
Lellig, Wendy. "L'office du juge administratif de la légalité." Thesis, Montpellier, 2015. http://www.theses.fr/2015MONTD056/document.
Full textAlthough profoundly reformed in the course of the past twenty years, the judicial recourse for abuse of power led by the administrative judge still falls short.Prevented to review, on its own initiative, the legality of the whole administrative act, the judge is sometimes bound to reject some complaints although they were admissible and well-founded. This deficiency in judicial review originated in the insufficient consideration of the unique nature of the judicial recourse for abuse of power which does not only entail settling a case but also ensuring the legality review of administrative decisions.To ensure the completion of his powers the administrative judge will need to liberate himself from the sole content of the submissions and arguments of the applicants and be allowed to expand his powers in order to accomplish his purpose.The analysis of the rationale to this prohibition of judge-initiated legal argumentsdemonstrates that there isn’t any theoretical or practical obstacle to the possibility for the administrative judge to automatically examine the legality of public policy arguments and conclusions. Only conceptual limitations, necessarily incidental, explain the inertia of the administrative judge in the determination of the matter at hand
Maurin, Laurent. "Le choix de la peine par le juge correctionnel." Montpellier 1, 2009. http://www.theses.fr/2009MON10011.
Full textDadoun, Armand. "La Nullité du contrat et le droit pénal." Cergy-Pontoise, 2009. http://www.theses.fr/2009CERG0414.
Full textEven though criminal law is a realistic law and mainly deals with facts, it nevertheless takes into account the notion of contract since the latter is the main legal instrument of exchanges. The conditions of validity of the contract have a special link with criminal law insofar as their main purpose is to prevent an illegal contractual norm from entering the legal order. Thus, the importance of “Criminal law of the formation of contract” should not be surprising. It remains to be seen whether “Criminal law of the formation of contract” is followed, on the civil level, by the normal sanction for the breach of the conditions of validity of the contract, known as contract nullity. By assessing to what extent the causes for contract nullity correspond to the constitutive elements of the offences, which are committed when the very contract is formed, a principle of nullity of contract, constitutive of the offence, can be drawn. Yet, when the offence does not necessarily imply a contract formation conflicting with criminal law, the legal system coherence does not require the nullity of the contract having the slightest connection with the offence. However, even when the contract is constitutive of the offence, positive law does not acknowledge any legal effect of criminal law on the causes of contract nullity. The autonomy between the nullity causes of the contract and the constitutive elements of the offence does not prevent the civil judge from qualifying an offence or the criminal judge from giving an opinion on the contract validity or even from declaring void an illicit contract. Yet, the criminal courts incompetency to annul contracts remains the rule. In practice, this leads criminal courts to award damages to the victim, while civil judge would award restitutions. The result is the eviction of contractual nullities law during the criminal trial which is difficult to understand and justifies the evolution of the competence of the criminal judge in the field of contracts law
Wada, Léo. "L'office du juge en droit de la responsabilité médicale." Thesis, Paris 8, 2017. http://www.theses.fr/2017PA080135/document.
Full textThe purpose of this research aims to investigate the input and role of judges in medical malpractice law.In the first part, we will demonstrate that civilian judges, later followed by administrative ones, laid down the core principals of medical liability law before lawmakers took over this matter.Once its governing foundations are laid, judges implement this regime. Although they are not medical professionals, their ability to dispense justice make it fundamental for them to have a relevant expertise in this field. Judges should also fulfil social expectations. As such, judges compensate injuries that were not reparable in the past and elaborate classifications for each personal injury category, which will motivate their decision.In the second part, we will argue that judge’s role today is yet to be clarified and solidified.A recent issue has emerged for judges since the creation of a parallel compensation proceeding for medical injuries through national solidarity. A balance is to be found between those two proceedings. Attorneys’ positions are crucial in this endeavour: they are the ones presenting judges with prejudices sustained by victims.Nowadays, judge’s role is questioned : it is sometimes considered that compensation is overly subjective and should be normalised in an effort to unify compensation practices within medical liability law. Conversations about the use of entitlement criteria and guidelines challenge their freedom. However, judges have long compensated prejudice according to the key principal of full reparation.We will defend that such dense and well-thought litigation cases entirely depend on civil jurisdiction
Viñuales, Jorge Enrique. "Le juge face aux crimes internationaux : enquête sur la légitimité judiciaire." Paris, Institut d'études politiques, 2008. http://www.theses.fr/2008IEPP0005.
Full textThe study explores the theoretical and historical sources of judicial legitimacy in the Western world. The starting point of the inquiry is provided by the current development of international criminal justice and, more specifically, the rise of the principle of universal jurisdiction. After an initial exploration of the delicate issues raised by universal jurisdiction with regard to judicial legitimacy, the author shows that, notwithstanding the myriad efforts to ground judicial legitimacy on popular sovereignty, the former cannot be utterly reduced to the latter. Universal jurisdiction thus provides a particular angle to observe the power of judges without succumbing to a democratic bias. What we see is a judiciary who benefits from a legitimacy of its own. Such legitimacy is not derived from the sovereign's, nor is it a mere portion of an indivisible sovereignty. Rather, it is a legitimacy on its own right, based upon a myth deeply rooted in Western cultures, according to which judicial pronouncements are vested with divine infaillibility. This would explain why judges are sought to decide issues that seems to be beyond human matters. Indeed, judicial legitimacy remains a powerful ressource irrespective of any link to popular sovereignty. This is why the judge can render justice over international crimes
Falkowska, Martyna. "Entre conformisme et émancipation: le juge pénal international face à la coutume et aux principes généraux." Doctoral thesis, Universite Libre de Bruxelles, 2017. http://hdl.handle.net/2013/ULB-DIPOT:oai:dipot.ulb.ac.be:2013/249496.
Full textDoctorat en Sciences juridiques
info:eu-repo/semantics/nonPublished
Pros-Phalippon, Chloé. "Le juge administratif et les revirements de jurisprudence." Thesis, Saint-Etienne, 2014. http://www.theses.fr/2014STETT112.
Full textBorn out of the tension between legal certainty and the need for case law to evolve and adapt is the reversal of precedent. For a long time, the administrative judge only examined it in light of the problem at issue, on a case-by-case basis, without any clear methodology.But times have changed. Since the beginning of the years 2000, we have witnessed a new development, tied to the growing importance of the principle of legal security — with a series of new decisions which would eventually change the law. The administrative judge progressively abandoned his case-by-case analysis in favour of a toolbox based on an overall approach. This methodology has all the characteristics of a judicial policy (“politique jurisprudentielle”), meaning it reflects a choice, fulfills a need, and seeks to bring more coherence. The administrative judge chooses to assume his capacity to create law, while taking responsibility for departing from stare decisis. Because such a departure undermines legal certainty, he nevertheless acknowledges the need for the retroactive effects of his decisions to be adapted. Judicial policy is symptomatic of how the administrative judge understands his role. Not only can he create law, but, by limiting what happens when overturning a precedent, the administrative judge also shows his capacity to control its effects. It is important, however, not to overestimate its impact. For this judicial policy has not led to a higher rate of reversals of precedent. In practice, little has changed. On a symbolic level, however, how this judge sees his function vis-a-vis the Conseil constitutionnel and EU law has changed a lot
Malpel-Bouyjou, Caroline. "L'office du juge judiciaire et la rétroactivité." Thesis, Pau, 2012. http://www.theses.fr/2012PAUU2020.
Full textThe connexion between the function of the judicial judge and retroactivity occurs by the postponement in the past of legal effects involved by the function of judging. Whether judicial or case law, retroactivity always entails a posteriori a change of the legal system. Traditionally related to legal insecurity that it can generate, nevertheless retroactivity is not always, in this regard, a bad solution. Indeed, in a certain number of cases, it is the efficiency requirement of the function of judging. Thus efficiency, set as its rational basis, justifies and determines the field of retroactivity, whether this retroactivity affects the judicial or case law effect of the judgment
Michaut, Françoise. "L'Ecole et la "sociological jurisprudence" et le mouvement réaliste américain : le rôle du juge et la théorie du droit." Paris 10, 1985. http://www.theses.fr/1985PA100202.
Full textDikna, Abdelhafed. "Le pouvoir du juge pénal dans la recherche des preuves en droit musulman comparé au droit français." Montpellier 1, 1987. http://www.theses.fr/1987MON10020.
Full textThe search for penal proof in moslem law and in french law is theoretically unrestricted. There are two reasons for such a liberty that is to say the importance of the manifestation of truth in repressive matter and the difficulty encountered in the search for it. The two probative systems have a comparable position regarding the main applications of the principle of the freedom in the search for evidences. However this principle includes some restrictions. The only means of proof allowed the magistrate are those admitted in penal law. Besides in the collecting of the probative elements the freedom of the magistrate may be subjected to two categories of restrictions. On the one hand he has to adhere to the rules applying to the processes in the search for evidences. On the other hand he must not resort to processes which may seriously interfere with some fundamental values
Diouf, Ndiaw. "La situation des partis au procès pénal pendant l'instruction préparatoire." Paris 1, 1992. http://www.theses.fr/1992PA010288.
Full textThe preliminary investigations are concerned with the finding and the collection of necessary elements for the judgment of infractions. There fore it is a very important step in the penal proceedings. During the instructions there are two persons who are mainly concerned : the accused and the public prosecutor. However the desire of punishing the offender that must not hide the necessety of giving to the victim the reparation which is due to him. So, appears a third person whosre rights are equal to those of the accused one. Looking through the positions of these persons we can find out deep inequalities. In fact the law has given a lot of prerogatives to the public prosecutor to the detriment of private parties. This kind of situation may be detrimental for the finding of the truth. To prevent that it is necessary to give at the private parties to get informed and to express thenselves
Wernert, Guillain. "Recherches sur l'office de juge-administrateur de l'environnement industriel." Thesis, université Paris-Saclay, 2020. http://www.theses.fr/2020UPASH009.
Full textThe particularity of litigation concerning individual policing measures in the industrial environment is that the administrative judge has an office of judge-administrator. We group together under the name of "industrial environment police" several special administrative policing, created on the model of classified installations for the protection of the environment, and operating according to the same logic. In addition to the policing of classified installations, the policing of the industrial environment brings together the policing of installations, structures, works and activities (Iota) subject to the water law, the policing of basic nuclear installations, the policing of environmental authorization and, with reservations, the policing of transport pipelines and that of infrastructure works for the transport of hazardous materials. Thanks to the office of judge-administrator, the judge can use all the jurisdictional powers, and in particular the larger ones, in litigation concerning industrial environment policing measures. Thus, where applicable, after having deemed the contested policing measure to be irregular, the judge may, when he considers it necessary to settle the dispute submitted to him, go so far as to transform himself into a judge-administrator. He then substitutes for the assessment of the administrative authority his own assessment and does the work of active administration, that is to say he takes a decision that will directly restore the legality flouted by the contested policing measure. This research intends to deepen this office of judge-administrator of the industrial environment, which the doctrine has always presented as being a particularity within administrative litigation. It will reflect on the place of this office within administrative litigation, in particular to find out whether it is still possible to consider that it is a special office of the administrative judge. It will also seek to know whether it is still justified for the judge to have such an office in this matter
Maugain, Géraldine. "La modélisation du procès civil. : émergence d'un schéma procédural en droit interne." Thesis, Dijon, 2010. http://www.theses.fr/2010DIJOD004.
Full textThe 20th century has initiated a new dawn for procedure as a tool to defend the rights of the persons subject to trial, a change motivated by a constant care to guarantee the supranational pattern of due process of law. At the end of the century, new stakes focused on more financial aspects also emerged. The efficiency of justice merged with the quality of the judicial decision to create a concept of smooth-running of justice. These common values generated an emerging procedural pattern reflecting the civil justice of the 21st century. At the level of procedural structure, a schism in the contentious stage developed into a strong readiness for trial and a complementary judgment stage. Now, both phases must be preceded by a consensual phase, which is still scarcely used though everyone seeks it. Regarding decision-making, the judge’s role must remain the same, stating the legal position. The main goal is then to give the judge what it takes to fulfil his function through the regression of his minor roles, thus defining more accurately what his original role is
Richard, Julie. "L'intime conviction du juge en matière criminelle." Thesis, Montpellier, 2017. http://www.theses.fr/2017MONTD002/document.
Full textThrough the system of the firm conviction, the constituents consecrate a system of freedom of the proof opposite to the system of legal proof applicable under the former regime. The firm conviction is based on the moral certitude of the jurors and involves their civic and religious consciousness. The constituents have substituted the legal sanction by a moral sanction. With the emergence of scientific proofs during the XIXth century, the system of firm conviction, although challenged, however continues to embody the proof system that is the most suitable to discover the truth and protect individual freedom. Over the contemporary period, the loss of independence of jurors towards professional judges on one end and the introduction of the requirement of reasoning for the judgement of assize courts on the other end again question the system of the firm conviction. The sustainability of the system of the firm conviction implies a strenthening to the decisional power of the jurors in the judgement of the assize court and a revalorisation of the role of the jurors during criminal trials. The requirement of the reasoning leading to guilt in the judgement of the assize court established by the law of the 10th August 2011 on the partcipation of the citizens to the functioning of Justice and judgement of minors proves to be insufficient. Regarding the legal requirements for a fair trial, it is necessary to reinforce on one end the reasoning leading to guilt and to extend on the other end the requirement of reasoning to the sentence pronounced by the assize court. The integration of the legal requirements for a fair trial regarding the reasoning in our criminal proceedings represents a chance for the system of the firm conviction which is thus called to renew itself
Hachem, Benjamin. "L'office du juge des référés en droit de l'urbanisme." Thesis, Aix-Marseille 3, 2011. http://www.theses.fr/2011AIX32011.
Full textUnder the old regime of stay of execution the urbanism crystallised the incapacity of the administrative court to prevent consequences hardly reversible of few administrative decisions. This put directly into question the credibility and legitimacy of the latest. This thesis aims to demonstrate how the legislator and jurisprudence of the Conseil d'Etat, by redefining the role of the judge of chambers, have given the juridic means to the administrative judge to answer appropriately to the legitimate expectations from litigants in terms of urbanism
Kuty, Franklin. "L'impartialité du juge répressif: de la confiance décrétée à la confiance justifiée." Doctoral thesis, Universite Libre de Bruxelles, 2004. http://hdl.handle.net/2013/ULB-DIPOT:oai:dipot.ulb.ac.be:2013/211136.
Full textLe législateur a entendu que la confiance soit à la base de l’impartialité du juge. Les travaux préparatoires du Code d'instruction criminelle de 1808 et du Code de procédure civile de 1806 l’illustrent. Au début du dix-neuvième siècle, l’impression qui se dégage au premier coup d’œil est plus celle d’une confiance décrétée en l’impartialité que d’une confiance justifiée. Il existait en quelque sorte un mythe du juge irréprochable. Cette impression se déduit de la circonstance que le sentiment de confiance est posé en principe malgré l’efficacité limitée des garanties juridiques de l’impartialité qui sont offertes à cette époque. Il en va de même, par analogie, de l’impartialité qui apparaît tout autant décrétée.
L’institution de l’impartialité du juge répressif présentait ainsi un sérieux paradoxe. Il apparaissait normal que la confiance attendue de la nation dans ses juges et leur impartialité soit justifiée par de sérieuses garanties. Or, en 1808, la légitimité du juge reposait essentiellement sur un sentiment de confiance décrétée, de sorte qu’il pouvait s’en déduire que la justice n’avait pour seule légitimité que la volonté du pouvoir qu’il en soit ainsi.
Dès les années quatre-vingts, les justiciables se montrèrent de plus en plus critiques envers les représentants du Pouvoir judiciaire, au point que nombreux furent ceux qui réclamèrent la restauration et la justification de la confiance dans l’impartialité du juge. C’est ainsi que des garanties objectives, concrètes, vérifiables, s’avérèrent requises. La restauration de la confiance en l’impartialité nous paraît dépendre, pour une bonne part, du renforcement des règles de procédure et d’organisation judiciaire qui contribuent à l’impartialité du juge.
La thèse s’articule en trois parties. La première s’attache à l’étude des garanties de l’exigence d’impartialité personnelle ou subjective du juge répressif. Nous envisageons, outre la définition de la notion d’impartialité personnelle (titre I), les garanties de nature procédurale qui renvoient à la notion de confiance légitimée (titre II) et les garanties instituées en cas de doute quant à l’impartialité personnelle du juge qui correspondent à la notion de confiance préservée (titre III). La seconde partie concerne les garanties de l’exigence d’impartialité fonctionnelle ou organique. Après avoir défini ce que recouvre cette notion (titre I), nous entendons définir la théorie de la séparation des fonctions de justice répressive, qui renvoie à la notion de confiance impossible (titre II). Nous clôturerons cette seconde partie par l’étude du principe du cumul d’interventions à l’occasion de l’exercice d’une même fonction de justice répressive, qui exprime un sentiment de confiance intact dans l’impartialité du juge (titre III). La troisième partie est consacrée à l’étude de trois questions de portée générale relatives à l’exigence d’impartialité :la renonciation au droit à un tribunal impartial qui dénote un sentiment de confiance indiscutable (titre I), la recevabilité du moyen qui soulève le défaut d’impartialité dans le chef du juge une fois la décision prononcée, qui renvoie à la notion de confiance protégée (titre II), et la sanction du défaut d’impartialité enfin, qui évoque la notion de confiance restaurée (titre III).
Doctorat en droit
info:eu-repo/semantics/nonPublished
Prévost-Gella, Jérôme. "Le juge administratif français et les conflits de traités internationaux." Thesis, Paris 1, 2016. http://www.theses.fr/2016PA01D065.
Full textAlthough conflicts between international treaties are generally a forgotten topic in administrative litigation studies, they constitute a major legal problem for the administrative judge, which are meant to increase. These conflicts, often considered as particular due to the alleged inapplicability of traditional resolving methods for conflicts of norms, raise a number of legal problems for the administrative judge concerning both their recognition and resolution. On the borderline between two legal systems, the internal legal system, owing to its place of occurrence, and an the other hand the international legal system, due to the international origin of treaties, conflicts between treaties are often deal with reluctance by the administrative judge. As a result, this leads to a legal regime still difficult to grasp.This thesis aims at offering a key to understand the treatment by the administrative judge of conflicts of treaties. It demonstrates, through the distinction of the inherent forces/strengths of domestic law on judicial decisions and those of international law, that the conflicts of treaties do not constitute a legal problem of international law, submitted by accident to the administrative judge. The latter, who is an actor in the recognition and resolution of treaty conflicts, has developed a precedent on this subject, resulting in a complex and fragile balance between the logics of domestic and international public law at the core of the essential singularity of the conflicts between treaties before submitted to the administrative judge
Baron, Elisa. "La coaction en droit pénal." Thesis, Bordeaux 4, 2012. http://www.theses.fr/2012BOR40049/document.
Full textIn criminal law, the co-perpetrator is classically presented as an individual who, acting jointly with another, gathers all the constitutive elements of the offence. However, one may harbor doubts concerning the relevance of this assertion since both case law and legal scholars denature its meaning.Actually, far from being limited to a mere juxtaposition of perpetrations, co-perpetration must be understood as a full mode of participation in the offence. Indeed, it appears as a form of imputation halfway between perpetration and complicity, from which it borrows some characteristics. In other words, it proves to be a mode of participation in one’s own offence. Above all, its particularism is provided by the interdependence between the co-perpetrators : because each of them joins forces with his alter ego, all are placed on an equal footing. These elements, which are found both in it’s concept and in it’s regime, demonstrate thereby the specificity of co-perpetration while strengthening the coherence of the different modes of criminal participation
Mandeng, Diane. "La procédure contentieuse en matière electorale : recherches sur le contentieux des élections au Cameroun." Thesis, Poitiers, 2017. http://www.theses.fr/2017POIT3001/document.
Full textIn 1979, the African study Center of Bordeaux, launched a new initiative about voting in Africa. Thirty seven years later, the organization of electoral processes has been substantially developed and is now deeply rooted in african political systems. Consequently, electing the people political representatives is now a cornerstone of decision-making processes of African political systems, leading to the enhancement of democracy issues and basic State rights struggles (or political power struggles), which assume/require a strong involvement of citizens. Regardless of intensive research activities about those issues, electoral disputes resolution remains a serious concern in Africa, potentially leading to post-election crises and violence, as well as long term conflicts in some African countries. Such a litigation process requires an adequate and simplified electoral conflict resolution mechanism, helping the involved parties to easily have access to the electoral court. The electoral litigation process in Cameroon has several positive elements ensuring civic and political rights to citizens. However, this process seems to suffer a lack, because the election judge is facing numerous virtual political and socio-political constraints. Therefore it becomes evident that, there is a need for a deep refitting of the law in order to better protect people's rights by improving the efficiency of the election judge, subsequently enhancing the Cameroonian representative democracy system
Gillotot, Annelieke. "Relevé d'office du juge et droit de la consommation." Thesis, Avignon, 2014. http://www.theses.fr/2014AVIG2040/document.
Full textThe office of the judge is organized by the rules of the Code of civil procedure: the judge must solve the litigations in law, and that, in order to do that, he benefits from the right to raise his own motion. This mission raises a particular difficulty in consumer law, especially regarding the law of the unfair clauses and consumer credit: these fields imply taking into consideration the contractual imbalance due to the weakness of the consumer. The office of the judge is confronted to the necessity to protect this « weak party », which raises the question of knowing if the judge has the right to raise his own motion. The difficulty of the answer opens a rich controversy (Part 1): the legislator, at the whim of the reforms, and the judge, at the whim of the reversals, will enrich this latter to finally come to a recognition of the right to raise the motion of the judge (Part 2).First the national judge clearly disapproved the exercising of the right to raise one's own motion in the name of the concept of public order of protection. The controversy was finally submitted to the assessment of the Community judge who enabling a recognition of the right to raise the motion of the judge. Driven by the Community jurisprudence, the French legislator finally lined up with this requirement. Then, a new impulse of the Community jurisprudence will question again the national law by the recognition of the duty of the judge to raise his own motion. The new law « Hamon » of march 17th 2014 and the recent internal jurisprudence are not evidence of a real satisfaction of the requirement set down by the Community law.We must embrace, from this laborious construction of the jurisprudence and internal legislation, the difficulty raised by the question of the right for the judge to raise his own motion concerning law consumption, which calls for future evolutions
Sarajlija, Sanja. "La Bosnie-Herzégovine et le juge international : Les individus de l'Etat face à la justice internationale." Strasbourg, 2011. http://www.theses.fr/2011STRA4008.
Full textFurther to serious violations of international humanitarian law committed in the territory of the former Yugoslavia, the Security Council established the International Criminal Tribunal for the former Yugoslavia. The jurisprudence of the tribunal concerning the territory of Bosnia and Herzegovina was particularly important for its contribution to international criminal law. Crimes committed in Bosnia and Herzegovina have not been treated only with regard to individual criminal responsibility, but also in relation to State responsibility. On 26 February 2007, the International Court of Justice issued its judgment regarding responsibility of Serbia for genocide committed in Bosnia and Herzegovina. The International Court of Justice has provided many details on the matter. Thus, for crimes committed in Bosnia and Herzegovina during the armed conflicts, international justice is faced with many complexities. Indeed, in this case, there is the relationship between individual criminal responsibility and State responsibility
Bouru, Michaël. "Les préjudices environnementaux. Essai sur la dualité de l'office du juge judiciaire." Thesis, Université Côte d'Azur (ComUE), 2018. http://www.theses.fr/2018AZUR0003/document.
Full textThe judge has authority, art, science and caution. He comes back to the litigant when he thinks his interests are injured. He has to be confident and be the guarantor of rights and duties of anyone. The judge deserves this confidence. Front to environmental prejudices, the judge has to improve a fair justice. As a matter of fact, he tries to make everyone’s rights as the ones who belong to environment per se. He is the one who contributes to the uprising of a true ecological public order. He demonstrates his ability to stop, fix or compensate damages relating to environmental harm. Despite the birth of this social and evolving environmental paradigm, the judge is part of a leverage effect in order to expand cival liability. Nevertheless, he is facing legal obstacles to fulfil his tasks. On the one hand, these obstacles are inherent to law which anihilate legal proceeding. However, the judge is not necessarily having the intellectual ressources to realise his role as a jurisdictio. On the other hand, operating procedures act as a serious break for the judge. Especially in legal proceedings where environmental issues are conducive to the common heritage of humankind and future generations. The judge has to build and maintain a true environmental action
Le, Moine Cathy. "Le pouvoir du juge de détermination et de gestion de la peine en droit pénal français : étude de la peine dans sa dimension juridictionnelle." Rennes 1, 2012. http://www.theses.fr/2012REN1G031.
Full textHamrouni, Slim. "Le contribuable, l'administration fiscale et le juge dans le contentieux fiscal et le contentieux fiscal pénal en droit tunisien : essai sur l'équivalence des rapports." Perpignan, 2005. http://www.theses.fr/2005PERP0605.
Full textIn the tunisian law,the tax litigation is specific in its two forms either fiscal or repressive. In fact,this specificity emanates from the fact that it differs from the common law rules. The tax litigation always relates the internal revenue service and the taxpayer. Besides when the tax litigation exceed the administrative phase,or when it extends to criminal proscute, the intervention of a judge of tax or a repressive one is compulsory. As a consequence of the presence of the internal revenue service in terms of public authaurity which defends the general iterest, the rights and garanties are mainly unequal in the relationship between the internal revenue service, the taxpayer and the fiscal or penal judge. Really,the bilateral relationship between the internal revenue service and the taxpayer in the administrative phase is caractered by the biggest rightes according to the internal revenue service. In fact the rules prescribed for the prelitigation and the litigation phases are often at the administration favour. It's the taxpayer who is overcharged by giving his allegation proof to obtain discharge,reduction or restitution of taxation. The judicial judge is in his turn submitted to the deviating procedure of the fiscal instance which reduces his power. The internal revenue service superiority is more clear in the criminal proscute where the judge and the taxpayer are under his authority and even whimsy desire
Akoun, Emilie. "Les moyens d'ordre public en contentieux administratif." Thesis, Grenoble, 2013. http://www.theses.fr/2013GREND012.
Full textL'auteur n'a pas fourni de résumé en anglais
Leclerc, Caroline. "Le renouvellement de l'office du juge administratif français." Thesis, Dijon, 2012. http://www.theses.fr/2012DIJOD005.
Full textThe study of the evolution of the methods used by the French administrative judge is necessarily connected to the new priorities that were chosen regarding the carrying out of his functions. « Pass judgment and resolve disputes » remains the foremost mission of the administrative judge. Some of the aspects of his powers and duties have nevertheless grown in importance as part of a policy of strengthening his legitimacy.. Indeed , administrative courts increasingly take into account the persons subject to trial and they have focused the revitalization of the jurisdiction on the protection of fundamental rights, a favoured field for the dialogue of judges. Those strong orientations led to a deep reform of their techniques and methods of judgment. The French administrative judge is now fully in accordance with the requirements of administrative actions and the issues at stake. Whether it concerns reviews of legality or their outcome, those interventions are obviously efficient. Thanks to the powers he now detains, the French administrative judge brings an adequate response to the needs of modern justice and has once again taken up the tough challenge of self-reforming his functions
Baillargeon, Johan. "La question prioritaire de constitutionnalité et le juge administratif." Thesis, Aix-Marseille, 2016. http://www.theses.fr/2016AIXM1043.
Full textThe priority preliminary ruling on the issue of constitutionality is a real "revolution" in domestic law, both in terms of the institutions of the French legal system and at the level of constitutional protection of fundamental rights of citizens. This innovative mechanism, now allowing the Constitutional Council to reviewa posteriori the constitutionality of laws, however, can not function without the help of the ordinary courtswhich are now elevated as judges of the constitutional filter. Taking the party to organize such a procedure, the constituents and the legislator officially invited the administrative courts to participate in the review of the constitutionality of laws. Beyond this observation, which the thesis illustrates concretely, the entry in force of this new remedy has led to a modernization of the law both at the institutional and the jurisdictional levels.This is the immediate consequence of the process of constitutionalisation of the various branches of the law which the daily use of the priority question of constitutionality exponentially increases. The contentious rules before administrative courts, which are renewed under the influence of the new constitutional case law affecting simultaneously the powers of the administrative courts and more generally the exercise of administrative justice, shows the administrative courts are not only the participants of the process but also its subject matter
Piasecki, Julien. "L'office du juge administratif des référés : Entre mutations et continuité jurisprudentielle." Phd thesis, Université du Sud Toulon Var, 2008. http://tel.archives-ouvertes.fr/tel-00370824.
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