Dissertations / Theses on the topic 'Droit de consentir'
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Alves-Conde, Maxime. "L'aptitude à consentir du salarié." Thesis, Paris 10, 2018. http://www.theses.fr/2018PA100114.
The thesis invites to be interested in the aptitude to consent of the employee. In so far as it constitutes the subject's ability to take part in the government's legal position through the agreement, it participates in the expression of a choice of the one recognized as weak party to the asymmetrical relationship which links him to the employer. In such a context, the issue of consent appears central. The contract, legal act supposedly concluded by equal subjects, requires the agreement of the one placed in a situation of inequality and consisting in the subordination, that it emanates from the legal act to which it consents or that it is already salaried.The ability to consent invites attention to the rules that recognize the employee's ability to decide, with regard to the contracts that labor law contains and that may fit into his legal situation. This aptitude is undoubtedly legal and is not limited to the rules which, classically, can be mobilized to characterize it. Legal ability does not come only from the rights of capacity or personality, but thrives through mechanisms that labor law promotes to allow not only the worker to assert a choice, but to protect him on this occasion. It still shines when the decision itself, that is to say, consent, is considered: without information and without taking into account the decision-making, the aptitude would be clearly diminished.The rules that form the legal capacity to consent must still be reported to others, which condition or direct the choices that the employee may have to make. Thus legal capacity also raises the question of its effectiveness, insofar as it is not only the object of protective rules. So, it is a question of seriously considering the relation of the subject to the job, whether it is for him to choose it or even simply to access it. And not to neglect, finally, the report of the ability to consent to the legal norms themselves. Whether it is the contract or surrounding norms, employers and conventional, the subject knows limits to the fulfillment of his will that sometimes participate in its protection and other times, a limit to the influence he has on his situation
El, Amine Dana. "La responsabilité du fait du refus de se soumettre à un acte médical à l'épreuve du concept de responsabilisation : une contribution à l'étude du droit de consentir à l'acte médical." Electronic Thesis or Diss., Paris 12, 2024. http://www.theses.fr/2024PA120002.
The study of the concept of empowerment in the context of medical consent, for which we propose a new definition, leads to the assertion that empowerment is part of a logic of encouraging virtuous behaviors in light of a recognized standard. In a society centered on individualism, empowerment through the right to consent has primarily emerged as a process of emancipation, aiming for empowerment and safeguarding individual rights such as, notably, the right to health protection and the right to respect for human dignity. However, the right to consent to medical acts is not merely an individual matter: its exercise can have repercussions on third parties and society as a whole. Beyond the terminological similarities between the notions of responsibility and empowerment, this vision of the free and, as a corollary, fundamentally responsible individual, which is the essence of our study, implies a normative conception of law : the objective is to safeguard essential, if not foundational, principles of our legal system, including the principle of not harming others. This approach entails that we invoke responsibility mechanisms, which present themselves as powerful instruments for regulating harmful behaviors. Through the dual nature of the empowerment concept, the question of consent to medical care is to be transformed from an individual choice to an altruistic one. This study aims to demonstrate the means through which the concept of empowerment, embedded in a strategy of encouragement and submission, contributes to establishing a common foundation of principles allowing a rationalized transition from autonomy to responsibility, acting as a safeguard against the excesses of autonomy in medical decision-making. Embedded in a utilitarian approach, the study aims to demonstrate, in certain hypotheses, the possible and necessary existence of liability for refusing to undergo a medical act without ignoring the foundational principles of medical law that impose, at most, regulating the right to consent without denaturing it. In this context, the study is animated by the desire to balance the need to protect individual interests and those of third parties and society that may be harmed by non-virtuous exercise of individual freedom in medical consent. In any case, the question of sanctioning the refusal to undergo a medical act within the framework of responsibility directly challenges the status of the patient entitled to refuse any medical act. The admission of liability, underlying autonomy, is only possible if it does not entail excessive and disproportionate consequences towards the right to consent. Therefore, the thesis proposes to analyze the right to consent in its relation to classical mechanisms of civil and criminal liability, allowing for the rationalization of the exercise of the right to consent when it threatens third parties and society
Lhermite, Astrid. "Éthique des soins aux personnes âgées : la capacité à consentir et traitement involontaire." Thesis, Toulouse 2, 2014. http://www.theses.fr/2014TOU20012/document.
Our research deals with ethical questions in gerontology, especially the capacity to consent and involuntary treatment. Our research is based on the Integration Information Theory of N.H. Anderson (1981). 98 lay people, 21 psychologists, 37 nurses and 14 physicians judged a nursing home resident’s capacity to consent on 50 scenarios combining 3 factors : “type of Decision”, “type of Problem”, “social Support”. 101 lay people, 20 psychologists, 20 nurses and 10 physicians judged the acceptability of involuntary treatment on 48 scenarios combining 4 factors : “type of Disease”, “physician’s Decision”, “Explanations”, and “Cognitive status”. Results don’t show differences between lay people and health professionals in the way they integrate the factors presented. In the first study, the factor “type of Problem” is the most significant, followed by “social Support”. 4 groups of participants distinguish themselves by the way the weigh the factors. In the second study, the factor “Explanations” is the most significant, followed by “physician’s Decision”. 3 groups of participants distinguish themselves. Individual variables like age, gender, educational level or experience have no effect. Assessment of the capacity to consent and acceptability of involuntary are influenced by the factors presented and it appears that there are different positions among the participants
Le, Du Nour. "Le consentement à l'acte médical des personnes vulnérables." Thesis, Paris Est, 2018. http://www.theses.fr/2018PESC0062.
The system of Consent to medical treatment for vulnerable persons – whether minors or adults without capacity – is a sensitive subject for legislator. The law has to combine protection of the patients’ physical integrity as well as the respect for their autonomy. The current state of law fails to achieve this purpose. Minors patients are deprived of their right to consent on their own, regardless of their age or level of maturity. Adults without capacity are treated in various ways depending on whether their legal protection is taken into account or not by the Public Health Code. An additional challenge is the existence of various medical acts that depend on specific regulations. Here we discuss the current limits of the law and propose a new system for the consent to medical treatment, which would be more respectful of the autonomy of minors patients or adults without capacity. Consent to medical treatment would depend on the ability to consent rather than on each patient’s legal status, such as stated in legislations from Switzerland or Quebec. However, the will to confer a larger autonomy should not put patient’s physical integrity at risk. Therefore, patients’ capacity for decision-making would depend whether the proposed care is required or not by their health state
Sferlazzo-Boubli, Karine. "Le droit et les soins psychiatriques non consentis." Thesis, Aix-Marseille, 2018. http://www.theses.fr/2018AIXM0390.
Mental disease is a public health challenge that questions about the fundamental rights and freedoms of people with it. Mental disease can disrupt the discernment of patients. It sometimes requires the application of specific legislation whose purpose is to protect, through care and confinement, the person himself and others. People with mental disorders are not only sick, but also subjects of the law. They must have the same rights and fundamental freedoms as any other person and, above all, they require the same guarantees when, out of necessity, they are restricted. Their freedom to come and go, their private life and their dignity are particularly exposed. The question is whether, in the light of human rights reflections, their infringement is always justified and whether the guarantees offered for their protection are effective with regard to the people with mental disease. The concepts of consent and dignity need to be revised so that they can extend to this category of patients and can effectively protect them. While progress has been made to guarantee fundamental rights and freedoms, much remains to be done for people suffering of mental disease and deprived of their liberty because of the care they require
Rebibou, Philippe David. "Le cautionnement consenti par une personne mariée." Nice, 1996. http://www.theses.fr/1996NICE0022.
Boucherit, Katy. "La libéralité consentie au vivant." Thesis, Poitiers, 2013. http://www.theses.fr/2013POIT3011.
Liberality is a transitive act of property for the benefit of another person. And because there is a will of favoring and protecting someone by this act we asked if the presented can include the living. Liberality's subject is a person, liberality's object, is a good of patrimonial's nature, one can't contract about the being. But, biomedical technology needs today human material. Science meets then individual's wills who'd like to obtain human material. Consequently the weakest can be reified. In that case can the mankind become the object of the liberality ? Bioethics sets principles, but scientific progress and mainly biotechnical ones erase them. Then right abandons its work of qualification and systematization and only rules personal impulsions. That's why we have been thinking that a re-reading of the summa divisio could allow us to set the borders, to qualify and to classify again. It seems appropriate to arrive to the protection of all the living rather than attributing rights to some non-human livings in order to make them beneficiaries of a liberality. This entrance in the summa divisio must not lead to confusionism with man and in particular with the human person, but it should recall the connections, so that what's worthy of respect would not be in the having category
Schultz, Philippe. "Les dispositions spécifiques relatives aux garanties consenties par les sociétés au profit de tiers." Université Robert Schuman (Strasbourg) (1971-2008), 1999. http://www.theses.fr/1999STR30008.
To preserve the interest of the company, the lawmaker subjects the guarantees granted by some company for the benefit of a third party either to an autorization or to a ban. After the author wonders about each provision and its difficulties, he suggests some solutions to restore the balance between the protection of guaranteing company and the legal security of guaranteed creditor. 1) An authorization exists in the business corporations and the agricultural cooperative companies. Because of a fluctuating jurisprudence, the texts providing an authorization set a problem of limit concerning the notion of guarantee which conditions their enforcement. Besides, a thorough study shows that the systems of authorization are very different according to the structure of the company. At last, the penalty against the contracts violating these provisions is debated : it's preferable to substitute a relative nullity for the inopposability imposed by the main law cases. Except some adaptations, the systems of authorization must be kept. 2) The bans are numerous. Some one depends on the guaranteed debtor. It's forbidden to a business corporation, a limited liability company and a agricultural cooperative company to guarantee the debt of their managers and assimilated persons. Because of a not very solid basis and an excessive penalty, these bans should be repealed. The guarantees would be subjected to the general rules of contracts interessing the managers. The other bans are dependent on the characteristics of guaranteed debt. The first one forbids to companies to contract a suretyship for buying their own
Valoteau, Aude. "La théorie des vices du consentement et le droit pénal /." Aix-en-Provence : Presses Univ. d'Aix-Marseille, PUAM, 2006. http://www.gbv.de/dms/spk/sbb/recht/toc/520818334.pdf.
Duhamel, Antoine. "Analyse et commentaires de la nouvelle législation sur les avantages consentis aux médecins et de ses répercussions sur la visite médicale." Bordeaux 2, 1994. http://www.theses.fr/1994BOR2P024.
Arroyo, Julie. "La renonciation aux droits fondamentaux." Thesis, Grenoble, 2014. http://www.theses.fr/2014GREND010.
Renouncement to fundamental rights can be seen as the legal act of a person to exercise or refuse to exercise one of its fundamental rights. Despite the relative absence of renouncement in academic literature, this notion exists and is ruled by a uniform legal set of rules. Relationships between renouncement and freedom are complex. Indeed, renouncement represents a significant freedom manifestation whilst creating a risk for said freedom. Furthermore, it implies a potential important arrangement of the use of rights and therefore a possible limitation to the freedom of the renouncing person. Only specific fundamental rights are to be considered as subjects to renouncement, due to a tension between freedom and public policy there is a need to set a boundary between “renoucable” and “non renouncable” rights. The study of renouncement cases shows their high frequency and various legal forms. However, renouncement is framed in a homogenous set of rules. More than any other legal act, renouncement can lead to a freedom weakening. Thus, renouncement lifecycle needs to be controlled. Non-compliance with validity conditions can lead to sanctions. Similarly, refusal of execution is also controlled by strict rules. The study of renouncement also helps understanding fundamental rights and highlights their meaning and legal structure
Giese, Constanze. "Die Patientenautonomie zwischen Paternalismus und Wirtschaftlichkeit : das Modell des "Informed Consent" in der Diskussion /." Münster : Lit, 2002. http://catalogue.bnf.fr/ark:/12148/cb39001529z.
Binois, Fanny. "Consensualisme et formalisme à l'épreuve de l'électronique, étude de droit civil." Thesis, Université Paris-Saclay (ComUE), 2019. http://www.theses.fr/2019SACLS192.
If the study of formalism and consensualism can constitute a classical theme of French law, a comparison of these great notions of private law with electronics is less common. However, the electronic transmission of wills invites to think about the challenge to the conventional principles of contract formation. A challenge partially raised by the legislator who, because of the abolition of paper support, had to adapt these notions. Wills, expressed by free or imposed forms, had to be able to circulate online. Without consensualism being explicitly targeted, the meeting of supply with acceptance has been adapted to electronic constraints. Nevertheless, the result is a regulation with an unclear terminology and regime. For the offer, the profusion of informative formalism, without sanction, and the denial of its written form are particularly bothersome. For acceptance, the scope of the double-click, or the acknowledgment of receipt, are still uncertain. Concerning formalism, the transposition of the act under private signature and the authentic act inevitably contributed to the denaturation of these forms. For the first, the traits are weighed down: how could handwritten mentions, assuming an irremediable physical link between the author's hand and the writing, be realized online without a technical consolidation? For the second, paradoxically, its future seems conditioned by the relaxation of the mystical character of authenticity, to give way to a new electronic authenticity. Hence the need to perfect the adaptation of notions.It actually causes a deeper movement. Once transposed to electronics, consensualism and formalism seem unfaithful to their traditional conceptions. Also, the notions would be exposed to a real transformation. This can not be neutral in common law contracts. Concerning consensualism, the hierarchy created between forms and the discrimination of non-electronic forms suggest a renewal of its classical approach. The development of a neo-consensualism is envisaged, bringing out a new duality of consensualism in common law. As for the formalisms ad validitatem and ad probationem, the impact of the electronics focuses on their mutual relations. Online, their dissociation becomes impossible. In addition to a textual assimilation, there would be a substantial fusion between the writings, whatever their legal role. However, such a union revives the colors of a unifying phenomenon known in the common law of contracts. There is then only one step towards the unity of formalism.Far from an abolition of notions, their testing by the electronics finally invites to rethink the principles of the formation of the contract
Morin, Sophie. "La place des droits du patient à l'intérieur de la conception actuelle de l'obligation de renseigner en matière médicale /." Thesis, McGill University, 1999. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=30319.
Bérard, Karine. "Les soins psychiatriques sans consentement en droit contemporain." Thesis, Lyon, 2017. http://www.theses.fr/2017LYSE3043/document.
The legal regime of the psychiatric care without consent, and the relevant legal provisions that surround it, are the direct consequence of the long-term development of the society in managing the mentally disabled people. This process of maturing, which reflects the delicate balance between the respect for fundamental freedoms and the imperatives of public order, mainly explains the rather belated recognition of these vulnerable patients as real subjects of rights. Through the law n°2011-803 of 5 July 2011 and the law n°2013-869 of 27 September 2013, the legislator maintained the model of care and medical administrative system without consent, dating from the nineteenth century. Nevertheless, through these last two reforms, the system has been attenuated by the introduction of a mandatory control of the liberty and custody judge and expanded these medical cares at the ambulatory. This system is characterised by its own duality in terms of admission rules: the request for care on demand of the representative of State (S.D.R.E.) on the one hand, and of a third party (S.D.T.) on the other hand. These two sets of procedures themselves are subdivided in a plurality of actions, each one justified on various purposes: urgency, absence of a third party, factual circumstances, existence of a serious public disorder or threat to the safety of individuals… Even if the legal regime for the medical care without consent is supposed to provide an appropriate care for each and every specific situations, often these policies are actually set for opportunistic reasons and do not always match reality. The disputes resulting from this exception legal regime demonstrate the many human rights violations suffered by the concerned patients. For these reasons, some tidying up can be envisaged. The latter would involve the merging of the two sets of procedures, the issuance of measures by the judge himself and a strengthening of the protection of civil rights and freedoms, provisions which will have to be surrounded by more effective safeguards and stronger controls
Tamod, Nafissa Luana. "L'abus de l'état de dépendance en droit des contrats." Thesis, Montpellier, 2019. http://www.theses.fr/2019MONTD015.
The Ordinance n° 2016 – 131 of February 10, 2016 — reforming Contract Law, the General Rules and Proof of Obligations —, ratified by Act n° 2018-287 of April 20, 2018, announces a paradigm shift in French Contract law.So far, the freedom of contract and legal certainty were the cornerstone of the French Civil Code. Nowadays, it will also have to deal with the protection of the weaker party.The abuse of the state of dependence’s legal recognition illustrates it. This enshrinement, coming from influences at both an international — the harmonisation projects, the foreign legislations which compete with French law but also foreign legislations which drew inspiration from it, have all enacted statutory provisions punishing the abuse of the state of dependence —, and national level — the legal doctrine and the case law which encouraged the lawmakers to recognise the notion — looked promising.However, as a result of the Ratification Act, restrictions were imposed — owing to disquiet about legal certainty and fears of economic circles —, and raised concerns about the implementation of article 1143, particularly with regard to the connivance of the third party which corresponds to the doctrine of notice in equity.Thus, it appears that the stated objectives of legal certainty and protection of the party in a state of dependence might be irreconcilable.Indeed, under article 1143 of the French Civil Code, « There is also duress where one contracting party exploits the other’s state of dependence on him and obtains an undertaking to which the latter would not have agreed in the absence of such constraint, and gains from it a manifestly excessive advantage ». Contrary to this opinion, this thesis aims at proving that legal certainty and the protection of the weaker party are not antinomic. Indeed, the abuse of the state of dependence can achieve both objectives. This is attested to, for example, by English law and Argentine law and these laws will help us in our conceptualisation of the abuse of the state of dependence in Contract law
Berthet, Anne-Charlotte. "L'acte médical imposé." Thesis, Aix-Marseille, 2012. http://www.theses.fr/2012AIXM1024.
Although health legislation has always advocated and protected the freely-entered-into doctor/patient relationship, many exceptions to free and informed consent have come to cloud this classical medical relationship. Compulsory medical treatment must be studied as a stand-alone legal concept if one is to identify the legal rights and responsibilities of each of the 'players' in this treatment. The objective of this conceptualisation is to draw out a stand-alone legal framework which would guarantee the rights and freedoms of the individuals concerned whilst guaranteeing the interests of Society. To reach this objective, this thesis endeavours to unify and clarify the nature of compulsory medical treatment with a view to attaining a unified, easily-read and stand-alone system to be used by legislators whether for private or public law purposes. It is therefore only as a result of a cross-disciplinary study of all compulsory medical treatments (which are 'exploding' in all spheres of the law) that this thesis is able to propose modifications to many laws and codifications in order to take into account the 'exceptions' which today are so numerous that they cannot be considered as such
Antoine, Virginie. "Le consentement en procédure pénale." Thesis, Montpellier 1, 2011. http://www.theses.fr/2011MON10040/document.
Le citizen participates in the criminal justice by means of his consent. The introduction of consent in criminal procedure would so bring to light the will of the legislator to develop a justice more centred on the author and its privileges, thus closer of citizen, more human. Nevertheless, the progressive abandonment (relinquishment) of a model of transcendental justice for a consensual said justice does not present that advantage for the citizen. Indeed, the implementation of a justice integrating (joining) the consent of the author is not without danger for the fundamental rights and the liberties of this last one. The progressive implementation of a pacificatorier said justice and less stigmatisante is made at the price (prize) of a sacrifice of certain rights processuel and a respect for the dignity
Le, Goues Morgan. "Le consentement du patient en droit de la santé." Thesis, Avignon, 2015. http://www.theses.fr/2015AVIG2042/document.
The appeal(recourse) to the care is daily thing for all the individuals. The latter are actually subjected(submitted) in their everyday life(daily paper) to the medical emanating constraint of "right-claim"("right-debt","law-claim") in the protection of the health planned in the paragraph 11 of the Introduction of the Constitution of 1946. Nevertheless, in a parallel to(at the same time as) this development of the access to healthcare, got free the subjective right(law) for the health which forbids any infringement(achievement) on the health of the individual. These two meanings of a word of the right(law) for the health interact to the point that the first one(night) becomes a real constraint for second. It is thus essential to find solutions so that a balance can become established between these two conceptions(designs). The consent in the care of the patient establishes(constitutes) validly a consequence of the subjective conception(design) of the right(law) for the health. Dedicated by the law of March 04th, 2002, relative to the rights of the patients, the right(law) for the consent arranges no fastening with an operating fundamental standard, for the moment. He(it) is in reality often reached(affected) by the appeal(recourse) compulsory for the care. This study thus attempts to demonstrate that the right(law) for the consent in the care presents a relative effectiveness and that it is then essential to connect him(it) with pre-existent fundamental right
Christelle, Maxence. "Consentement et subjectivité juridique : contribution à une théorie émotivo-rationnelle du droit." Thesis, Paris 1, 2014. http://www.theses.fr/2014PA010283/document.
Consent is probably one of the concepts with which the community of law practitioners is most familiar. Having been introduced to the concept from the beginning of their studies, and almost exclusively in the context of contract law, the community of law practitioners finds it a convenient way to explain how an individual can choose to put his/her behavior under the rule of the law; consent indicates the presence of individual will, that is to say, the subjectivity of the individual exercising consent.Nevertheless, an examination of consent in the context of French law reveals that relatively little research has been done on this topic, and the very definition of the term rarely comes under close consideration. As a result, definitions vary, but retain a common element in that consent is almost always considered separately from the individual exercising it.This abstract approach, although it has its merits, must evolve. The lack of definition of the concept of consent results in it being put to new uses. The judicial community thought that consent would resolve the question of subjectivity, when in fact it only increases the need for a proper study. Therefore, we will seek a definition of consent, by taking an etymological approach. Based on this we will attempt to propose a new understanding of consent and juridical subjectivity, by integrating the emotional aspects of subjectivity into thinking and discussion on law
Zinty, Stéphane. "La constitution du droit réel par l'effet de la tradition." Thesis, Lyon 3, 2014. http://www.theses.fr/2014LYO30025/document.
The consecration by the Civil code of 1804 of the rule of ownership transfert solo consensu led (drove) to envisage the constitution of the property right clearly of its erga omnes opposability.An identical situation prevails frequently in the presence of a real dismembered right, where the constitution of the right is frequently independent from the opposability in third parties, which depends on the fulfillment of a patent process.However, this plan violates the substantial opposability of the real right, which assures his holder the exclusivity of its legal relation with the thing. The constitution of the real right based on a phenomenon of transmission which represents the essential cog: it is about the transmission of the thing in the presence of ownership transfer or of that of an economic advantage. It reveals the peculiarity of the legal regime of the opposability of the real right, which is characterized by this reciprocity towards thirds parties.This approach articulates badly with the idea of a conventional constitution of the right reality where its opposability is arrested in a two-tier way : in the “virtual” state during the exchange of the consents and in the ‘actual” state with the fulfillment of required formalism. The consensual opposability of the real right is a hollow concept because ineffective legal, so that the formalism of opposability maintains an exclusive relation with the substantial opposability.The perspective of a constitution by the tradition is so established, which is endowed with a constituent effect of right because, beyond her original materiality, she exteriorizes the translative operation inherent to the real right and so protects the substantial opposability from it.It is necessary from then on question to analyze exactly the way the rule of the constitution sola traditione of the real right penetrates the substantive law.Now, in this respect, it acts as rationalization
Goguel-Mazet, Émilien. "Recherche sur la transparence en droit des finances publiques." Electronic Thesis or Diss., Aix-Marseille, 2021. http://www.theses.fr/2021AIXM0559.
Transparency is a growing concern in today's society. This development of the theme can be seen in all areas of the law. In the field of public finances, many authors have referred to transparency as a democratic requirement that would respond to the concern to ensure respect for the consent to taxation, a cornerstone of the development of budgetary law and of the growth of parliamentarianism. Although the centrality of transparency in public finances is widely acknowledged, few works have dealt with the relationship between this notion and the subject. This monograph therefore proposes to study the principled nature of transparency for public finances. It thus endeavours, in accordance with a conceptual method, to analyse the primary character of transparency in public finances. This means, on the one hand, assessing the constitutive character of transparency, i.e. its capacity to establish and structure public finances. It also means analysing its instituted character for public finances, finding the foundations of its emergence and development in the purposes pursued by this subject: the exercise of budgetary power. The transparency of public finances will thus be approached as an object of knowledge at the heart of the devolution and distribution of budgetary power, which bestows on this subject its dynamism and its evolutionary character to this subject
Dugne, Juliette. "La vulnérabilité de la personne majeure : Essai en droit privé." Electronic Thesis or Diss., Montpellier, 2020. https://buadistant.univ-angers.fr/login?url=https://bibliotheque.lefebvre-dalloz.fr/secure/isbn/9782247218752.
This study aims to analyse how private law judges the vulnerability of a legal person over the age of majority. Confronting this established fact – as equal to weakness – to the rules of civil law might be surprising. The vulnerability firstly faces to a legal subject presumed to be capable and sane. Then, due to its vague principle and variable content, the concept communicates a sense of legal uncertainty. However, despite the difficulties, the concept of vulnerability enters in the legal sphere. In a context of aging population it is experiencing a continued growth and is the subject of extensive litigation. This is a significant observation in the protected adult’s law. From now on, the words of « vulnerable adults » replace « incapacitated adults ». More than being a kind of softening in the legal language, the semantic transition reflects a paradigm shift in the vulnerable subject’s protection, which tends to avoid the use of the incapacity. However, this legal protection based on promoting autonomy may prove to be contrary to the personal and patrimonial interests of the concerned. This side effect encourages therefore to continue the study beyond the law of the protected adults by considering other legal measures able to seize this fact. Once the study is complete, it is then possible to argue a general approach, on overall consistency, in the apprehension of vulnerability by the rules of private law. Linked to the protected adults’s law, it’s one factor which can be used to adjust the protection of the concerned and identify its exercises of capacity. Unlinked to the protected adult’s law, its become a criteria to allow sanctioning past actions made under its exploitation. Alternatively faced to the concepts of capacity and inability, consent and insanity, autonomy and dependence, vulnerabilty appears in fine to be a concept that concerns private law, influences on its protection measures and provides an opportunity to look critically its effectiveness and even to think its developments
Kadem, Sabine. "Le droit du plus faible comme principe d'interprétation judiciaire en droit civil de la personne." Thesis, Bordeaux, 2014. http://www.theses.fr/2014BORD0104.
The weakness is everywhere and affects everybody. When she is revealed, showsitself the vulnerability. A this moment she must be legally qualified. Yet, as any qualification,her has to obey rules. So these impose upon the present study as first analytica l foundation.Indeed while leaving of the private law, that of the person, of first rules guaranteeing the rightsof " the Man " can be identified. These have for object what makes the human being, in hisweakness, in a way gives a shape of definition, legal, but without all the depth of an approachthan what systematism, even sometimes systematic, in the sense of a regulation“administrativiste” rights. It is in the theoretical intertwinings, that base the legal rule, whichwe can seize with hypotheses making the legal rule be. However, it is in the underlyingthought, that only a language of philosophy of the right/law will know how to reveal, that theweakness will find its most demanding correspondence. There she joins the ontological andmetaphysical languages, which make that she "exists". Of an approach of philosophy of theright/law we shall thus retain that the right of the weakest obeys several common rules, andbeing of a shape of universality, and that these can find a real translation in substant ive law. Itis a shape of typology of the weakness that we find most of the time in practice in the speechof the judge. While calling upon the judgment of the judge, in his ruler judicial interpretation,the weakness take its last shape, the one that the person owes accept to assert to right a“right”
Jakouloff, Karim. "L'influence des droits de la consommation et de la concurrence sur la théorie des vices du consentement." Thesis, Paris Est, 2013. http://www.theses.fr/2013PEST0094.
The theory of the defect of consent offers a generic protection of the contracting party against all risk of consent modification. Having noticed its inadequacy, the laws of consumerism and competition have chosen to adopt a set of specific rules aiming to protect on one hand the consumer, and on the other hand the professional, both in a weak negotiating position, against these same risks. Within the consumerism law, this has been achieved under the European Rights impetus. The 11 May 2005 directive concerning unfair business-to-consumer commercial practices has largely dictated the content of the protective measures nowadays applicable to customers. In the same way, the Second Title of the First Book of Consumer Code, dedicated to commercial practices, consists of a preliminary chapter establishing the unfair business-to-consumer commercial practices. It follows by the 1st chapter, where the 1st section deals with misleading commercial practices, whilst the 2nd chapter, 5th section deals with aggressive commercial practices. Hence the competition law has resorted spontaneously to this option. Fourth Book includes fourth Chapter, where the second Chapter relates to the ban of competitive restrictive practices. These ones, forbidden per se, apparently have no link to this theory of the defect of consent. However, if we look closer, some of them have indirectly the aim to balance present forces at the negotiation stage via a distribution contract between professionals. In fact some will be keen to ban certain professional's behavior that, having a certain economical advantage, could be tempted to play in such a way so as to acquire unjustified contractual advantages from contractual partners, economically dependent. In doing so, the latter would need to have their consent protected.By developing such legislation, special laws have distanced themselves from their mutual purpose. Thus, if it is true that the consumerism law offers a set of rules aiming to prevent any defect of consent should it arise, it equally proposes a multitude of preventive rules but of a delicate maneuver – this being an original approach within the theory of defect of consent of common law, trying to repress the abuse effectively altering the contractual consent. Their comprehension as well as the putting it into practice would require a certain skill, to the point of risking the protection effectiveness that it aims to provide. As to the competition law, a set of rules aiming to forbid per se sensitive behavior, it would endanger only particular interests of professionals in a weak negotiating position, and not the whole market, manifestly tending to divert the matter from its initial result.To find a solution to these observations would imply to take into account the possibility of cutting off special rights of certain legal rules aiming to protect contractual consent they are under the obligation of, in favor of the theory of defect of consent. Such solution would lead to re-focusing on consumer and competition laws around their respective result, which are on one hand the protection of consumer's personal interests, and on the other hand market protection. It would then mean that the contracting party, sheltered by special rules, would not see their protection level diminish. To be re-assured there's the need to determine the nature of the improvements the theory of defect of consent would require, so as to include a part of the litigation of special law. The latter, inspired by a study of special law, could then benefit of the whole contractual under the common law
Mornington, Alicia-Dorothy. "The limits of consent : liberalism and the challenge of harm to self." Thesis, Paris, Institut d'études politiques, 2015. http://www.theses.fr/2015IEPP0038.
This thesis focuses on consent to harm, and asks what happens when individuals consent to what appears to be harmful. This raises the possibility of paternalism and state neutrality. Consent to harm is a blind spot for liberal theory, and this issue concerns in particular the English-speaking world. If all countries are affected by this serious philosophical question, the US and the UK, because their libertarian tendencies are more prone to be affected by this question, as is visible in the jurisprudence. This work interrogates the premises of libertarian and liberal theory, by showing the ambiguities of the notion of consent. The analysis is based on contemporary jurisprudence involving consent to harm, and constructed on a casuistic approach to the problem of consent to harm. This methodology permits the author to distinguish between two types of cases: those in which consent is motivated by market forces, where consent is often incomplete and coerced; and those in which consent appears to be entirely voluntary because they take place in the intimate sphere
Rodriguez, Peña Pilar. "Le caractère contractuel de la responsabilité civile médicale : étude comparée droit chilien - francais." Thesis, Paris 2, 2013. http://www.theses.fr/2013PA020022.
The contractual nature of the medical liability had no the same interest in chilean law that french law. However, the increasing privatization of health and the phenomenon of contracting activity for Chilean takes us a deal to make a further study to determinate the contours from the French law. The main problem was that the applicants have escaped the contractual liability and mainly because of the problem of overlapping responsibilities. This problem present in chilean law can be resolved through a thorough study of the medical contract, the conditions of its existence and validity of its main characteristics and different theories have attempted to explain its legal nature and it provide a legal regime that atypical contracts. On the other hand we have to deal with all cases where the initial medical relationship does not source the medical contract, although it has been considered anyway by courts and commentators as having a contractual, and why try to analyze the different theories that have had the purpose of contractualize responsibility for private and public hospitals,, by the fact of their employees, to avoid the responsibility of these centers become effective in accordance with standards of tort
Leprince, Christelle. "L'assistance dans l'élaboration d'un acte juridique." Thesis, Rennes 1, 2014. http://www.theses.fr/2014REN1G017.
Assistance is a method that the legislator has had recourse to for long in the drafting of a legal transaction and it still does nowadays. However, it seems to arouse so few interest that the legitimacy of its existence may be doubted. The purpose of this demonstration therefore is to understand this practice and determine whether it can be considered as a singular and autonomous institution or not. Assistance can play two parts during the drafting of a legal transaction, sometimes as an “enabler”, sometimes as a “facilitator”. While this duality proves to be useful in the determination of the regime, it mostly brings a lexical confusion. In any case though, assistance conveys a substantial unity. Both defined as “being with” and “acting with”, assistance is an intermediary protection technique that excludes any kind of substitution and consists, for the designated assistant, in standing by the assisted to help him to state a will in accordance with his interests. As a consequence, it has to comply with clearly identified rules, which is, to date, not necessarily the case. Whilst presenting the positive law, this study aims at clarifying the functioning of assistance, both taken as the relationship established between the two main protagonists and beyond. Although assistance mainly concerns the assistant and the assisted, it inevitably has an impact on the legal transaction concluded thereby and the related third parties
Hemery, Marie. "Citoyenneté fiscale et droit de l'Union européenne : de la protection européenne du contribuable national au consentement de l'impôt européen." Electronic Thesis or Diss., Paris 12, 2023. http://www.theses.fr/2023PA120002.
The European protection of the national taxpayer has an impact on tax citizenship as a principle of tax legitimisation. The national conception of tax duty based on the political participation of the citizen in his consent, through his representatives, is confronted with the European conception of tax duty based on the protection of the taxpayer, as the holder of freedom of movement, and aimed at favouring the construction of an economic area without borders. However, the study of these interactions shows that the relationship between European integration and tax citizenship should not be seen as a unilateral process whose only consequence would be the weakening of the latter, but as a transversal process where the effects of the enforcement of EU law on tax citizenship have a retroactive effect on the degree of European tax integration and, beyond, on the political organisation of the European Union. This observation invites us to study how these conflicting relations could, following the federal logic, be solved through the creation of a European tax consented by the European citizens themselves
Gomes, Filippo Luciano. "La performance en droit fiscal : un nouveau paradigme (perspectives comparées)." Thesis, Paris 2, 2013. http://www.theses.fr/2013PA020032.
The economic reality lived today primarily by European countries, along with a natural concern, brings a new horizon of thoughts, a breath of new ideas. The practice has already shown that cutting public spending is not the most reliable output to the Government debt crisis. What is intended to demonstrate with this thesis is that the investment in tax collection performance can be a powerful prophylaxis. Instead of reducing spending accomplished with the most diverse public services, the best policy to be adopted is the development of tax administration performance. In the text, we describe as performer the Administration which manages to raise the resources needed to perform its functions, the State with the least expenses for the minor nuisance caused possible for taxpayers, in which their interests and satisfactions to be preserved as much as possible. This is a general definition that is not restricted to a particular land-use analysis. Our goal is to build a universal notion applicable anywhere. Similarly, we seek to identify a general meanswhich promotes the objective of making the effective tax administration. There is no doubt that this goal can only be achieved if the work of the Administration becomes more practical. The "principle of practicality" helps exactly in the reduction of multiple tasks. This is complemented through the privatization of some activities related to tax collection. In addition to reducing the work of tax authorities, we understand that it is necessary to invest in control measures and reduction of disputes, which in addition to degrade the sensitive relationship between administration and taxpayers, slows the receipt of taxes, causing a negative impact on the level of revenues. This goal can be achieved, mainly through the development of consent to tax and the adoption of alternative means of dispute resolution
Morel, Victor. "Enhancing transparency and consent in the internet of things." Thesis, Lyon, 2020. http://www.theses.fr/2020LYSEI073.
In an increasingly connected world, the Internet permeates every aspect of our lives. The number of devices connected to the global network is rising, with prospects foreseeing 75 billions devices by 2025. The Internet of Things envisioned twenty years ago is now materializing at a fast pace, but this growth is not without consequence. The increasing number of devices raises the possibility of surveillance to a level never seen before. A major step has been taken in 2018 to safeguard privacy, with the introduction of the General Data Protection Regulation (GDPR) in the European Union. It imposes obligations to data controllers on the content of information about personal data collection and processing, and on the means of communication of this information to data subjects. This information is all the more important that it is required for consent, which is one of the legal grounds to process personal data. However, the Internet of Things can pose difficulties to implement lawful information communication and consent management. The tension between the requirements of the GDPR for information and consent and the Internet of Things cannot be easily solved. It is however possible. The goal of this thesis is to provide a solution for information communication and consent management in the Internet of Things from a technological point of view. To do so, we introduce a generic framework for information communication and consent management in the Internet of Things. This framework is composed of a protocol to communicate and negotiate privacy policies, requirements to present information and interact with data subjects, and requirements over the provability of consent. We support the feasibility of this generic framework with different options of implementation. The communication of information and consent through privacy policies can be implemented in two different manners: directly and indirectly. We then propose ways to implement the presentation of information and the provability of consent. A design space is also provided for systems designers, as a guide for choosing between the direct and the indirect implementations. Finally, we present fully functioning prototypes devised to demonstrate the feasibility of the framework’s implementations. We illustrate how the indirect implementation of the framework can be developed as a collaborative website named Map of Things. We then sketch the direct implementation combined with the agent presenting information to data subjects under the mobile application CoIoT
Jarboui, Nissaf. "Le pouvoir financier de l'organe législatif : étude de droit comparé." Thesis, Aix-Marseille, 2020. http://theses.univ-amu.fr.lama.univ-amu.fr/200122_JARBOUI_408dyy712blc127z921bqg_TH.pdf.
The thesis focuses on the comparison of the financial powers of the respective legislative bodies in the three Maghreb countries (Tunisia, Algeria and Morocco). The study focuses on the obstacles that hinder the financial power of Maghreb legislative bodies. These obstacles have a dual, cyclical and structural aspect. Structural barriers are manifested in the fragility of the budgetary process as well as in the insignificance of the principle of consent to tax. The cyclical obstacles are characterized by the prevalence of partisan issues in the three Maghreb countries as well as a parliamentary institution disoriented between bicameralism and mono-merism. The consecration of a well-structured financial power driven by a clear desire for democratization has become a political demand in the three Maghreb states because they will not be able to remain indifferent to the profound changes that are taking place all over the world. However, the evolution of the process of democratization as well as the emancipation of the financial power of parliament in the three Maghreb states, does not allow us to ignore certain political factors that makes the equation between the objectives and the means used to achieve them very difficult
Forge, Alexis. "Essai sur l’éviction du juge en droit du travail." Thesis, Paris 2, 2019. http://www.theses.fr/2019PA020016.
The introduction of measures designed to avoid taking industrial disputes before a judge illustrates the current policy of anticipating outcomes and settling matters out of court. Preference is given to coming to an agreement that corresponds to the case in hand and satisfies all the parties involved rather than a decision imposed by a third party. The common consent termination and the settlement agreement, supported by both the legislator and the judge, have become widely appreciated practices. There is, however, room for improvement. After being excluded from employment law in France for many years, with the notable exception of industrial tribunal conciliation, alternative ways of settling disputes have recently been promoted by the public authorities, but have not proved as popular as expected. These mechanisms are designed for widespread application but they need to be reinforced and adapted to the corporate world. The judge’s position needs be revised and judges need to be able to exercise greater control
Chevalier, Sébastien. "Refus d'un acte médical et liberté individuelle." Thesis, Angers, 2015. http://www.theses.fr/2015ANGE0088.
The right to refuse a medical act, a corollary of the principle of consent to care, reflects the expression of individual freedoms and respect for the physical integrity of individuals. However, the affirmation of this right does not appear to be self-evident: it amounts to admitting the deterioration of a person’s health whereas the purpose of medicine is to achieve the healing of a patient. Moreover, like all fundamental rights and freedoms, nuisance to others is a limit to the application of the right to refuse a medical act. If temperaments are provided for, the limitations of the said right are susceptible of degrees: failure to comply with the legislative provisions relating to compulsory vaccinations results in the prohibition of access to the public school service and exposes the offender to criminal sanctions. In this case, the physical integrity of individuals is not affected since there is no possibility of forced injection. On the other hand, the principle of consent to care is called into question in two cases. On the one hand, when the patient’s vital prognosis is at stake, interventions can be given by force; this applies to blood transfusions intended for a Jehovah’s Witness patient. On the other hand, the right to refuse a medical procedure can disappear when people suffering from mental disorders are hospitalized without consent. However, strengthened safeguards have recently been put in place: new procedural rules that are more protective of fundamental freedoms are being applied and the judicial wall is more efficient. Consequently, restrictions on the exercise of the right to refuse a medical act are justified in the name of safeguarding public order, the definition of which is extensive
Laseraz, Julie. "La spécificité de la victime en droit de la santé : la recherche d'un statut juridique." Thesis, Aix-Marseille, 2017. http://www.theses.fr/2017AIXM0285.
Evolutions of the society testify a growing awareness of the concept of victims by the law, and especially in Health Law. Health Law is a branch of law which is particularly rich and complex, and whose expansion results both from the judicialization of the health professions and from the succession of health scandals. The transversality of Health Law and its obvious apprehension of the victim lead to highlight the existence of a special relationship between these two concepts. However, the question is whether the scattered character of the Health Law rules assigns a coherent legal status to the victim in this area. If the search for the legal status of the victim can be undertaken, this can be justified by the specific nature of Health Law. The present study tries to demonstrate the existence of the singularity of the victim in the Health Law, while legitimating at the same time the search for the legal status. The foundation of the victim’s specificity lies in the attribution of this quality independently from the realization of a risk. The occurrence of an event constitutes therefore a temporal criterion on which depends the quality of “proved victim” or that of “potential victim”. The tangibility of the victims’ legal status in Health Law arises from the recognition of the singularity through the present dichotomy
Aznar, Thibaut. "La protection pénale du consentement donné par le consommateur." Thesis, Perpignan, 2017. http://www.theses.fr/2017PERP0038/document.
The consumer’s penal protection is an essential stake, even more so following the last legislative reforms that occurred in the matter. The consumer’s consent’s protection represents the very essence of criminal law’s intervention in the consumerist sphere. The fundamental question that must be asked is whether criminal law punishes the criminal behaviour that a professional might show as an additional legislation which is dependent on civil law or, more interestingly, if criminal law is in fact autonomous in the consumer’s consent’s protection without being nothing more than a repressive and dissuasive legislation
Perona, Océane. "Le consentement sexuel saisi par les institutions pénales : Policiers, médecins légistes et procureurs face aux violences sexuelles." Thesis, Université Paris-Saclay (ComUE), 2017. http://www.theses.fr/2017SACLV066.
This study addresses the handling of rape and sexual abuse by the criminal justice system. The legal characterisation of the facts regarding cases of sexual abuse was a crucial issue during the empirical research that was conducted for the purpose of this study among police officers, forensic doctors, and prosecutors. Consent has long been conceptualised from a political theoretic or legal theoretic perspective. This dissertation intends to analyse the concept of consent in light of sociology of law and examines it as an object involving police investigations, forensic medical examinations, and prosecution cases.A 10-month ethnographic research was conducted among the criminal police department of a big city in France. Using the complaints filed with this police department a data base was set up. In addition, a series of interviews were conducted with 18 police officers from three different child abuse investigation units, 10 forensic doctors, 10 prosecutors, and 7 members of a Prefectural committee developing actions fighting violence against women. 5 of their meetings were also observed.This dissertation shows that actors working in the criminal justice system have objectified what non-consent is in three distinct ways. First, actors objectify non-consent by violence: non-consent is evidenced by signs of violence on the body of victims. Second, non-consent is objectified by existing relationships: actors determine constraint by examining the nature of the relation between the respondent and the claimant as well as their respective position in social space. Third, actors objectify non-consent based on emotions: the claimant has to be docile and to openly share her pain while accepting the ordeals required by actors from the criminal justice system.These different interpretations of non-consent, and thus the different perceptions of sexual abuse, are variously distributed among actors according to their professional occupation and the institutional constraints they encounter. Police officers and prosecutors who investigate both incriminating and exonerating evidence are more likely to challenge the victim’s testimony and are more prone to look for pieces of evidence. In addition, the criminal justice system prevents police officers and prosecutors from developing different opinions on cases. In contrast, forensic doctors consider that it is not for them to evaluate whether there has been consent or not. Regarding feminist activists participating in the Prefectural committee fighting violence against women, they strongly question how police officers have framed sexual abuse and consider that this framing blames women for experiencing sexual abuse.Finally, proving the existence of consent is a task that questions the actors’ own traditional representations of sexuality. Women and adolescent girls’ sexuality is perceived by police officers and prosecutors as a personal matter related to love and affects. Men’s sexuality, however, is regarded as a need and sex drive. This dissertation eventually underlines the concern of police officers for feminine subjectivity, which is a singular thing in an institution rewarding masculinity
Chevreau, Laura. "Droits fondamentaux et recherches scientifiques portant sur la personne humaine." Electronic Thesis or Diss., Université Paris Cité, 2023. http://www.theses.fr/2023UNIP7143.
In order to protect human beings involved in scientific research, a legal framework is required to establish the scope of research on human beings and to determine the circumstances in which their integrity may be violated. This framework has been developed through numerous regulations at international, European and national level, gradually penetrating the researcher's "laboratory". It is the result of developments in experimental practice and historical scandals that have made it essential to provide a framework for scientific research involving human beings. This is why it is intrinsically linked to fundamental human rights. An analysis of its construction reveals a specific link between fundamental rights. The regulations governing scientific research involving the human person are built around the overriding need to protect human dignity. This is reflected in the hierarchy of fundamental rights, which is dominated by human dignity and consolidated by a set of subjective rights (right to information, consent and protection of personal data), which restrict the freedom of scientific research. However, the technical and scientific advances of the late 1990s, as well as the gradual globalisation of research activity, have gradually affected this material hierarchy. Changes in the regulations governing scientific research involving the human person reflect the legislator's ambition to make research more attractive and competitive, which is detrimental to the full and complete effectiveness of the participant's fundamental rights. Since scientific research is carried out in a collective interest that differs from the participant's personal interest, the result is a conflict that has hitherto led to a weakening of the effectiveness of the rights of individuals involved in research. Although the individual is always protected against the risk of his or her being used for scientific purposes, it is important to continue to guard against this risk and to consider whether a new balance should be sought to strengthen the substantive hierarchy between fundamental rights, while not creating conditions that are disproportionately unfavourable to scientific research
Legrand, Ludovic. "Limites au principe du consentement des États à la compétence de la Cour mondiale : (Droit et politiques juridiques)." Thesis, Paris 10, 2019. http://www.theses.fr/2019PA100139.
The principle of State consent to the jurisdiction of the International Court of Justice (ICJ) and that of its predecessor, the Permanent Court of International Justice (PCIJ), is a fundamental principle of international adjudication. According to the Court, and academic commentary, the Court's jurisdiction is governed entirely by this principle. However, affirming the existence of limits reveals a gap between theory and practice. Study of the sources of the Court's jurisdiction leads to the identification of factors which do not support this discourse. The reality of cases before the Court contrasts with the perception of a court rigidly subject to State consent to its jurisdiction, and brings to light the legal policies pursued by the principal actors in proceedings before the Court: States and the Court itself
Diarra, Almanso. "Les relations juridiques entre le médecin, le patient et le juge judiciaire : l'exemple du Sénégal." Thesis, Paris 8, 2014. http://www.theses.fr/2014PA080054.
The protection of the rights of the patient became at the moment, a legal obligation (bond) which is imperative upon any rule of law (State subject to the rule of law). Therefore, Senegal which evolves fast is not lagging behind in the respect and the protection of the rights of the patient in particular and the human rights generally. It is from this perspective that the Senegalese legislator adopted in 1998 two complementary (additional) relative laws which re-forms her (it) of the health system to confer on the patient’s rights, which until the adoption of these laws, were considered as ethical obligations (bonds) of the doctor: The law n°98-08 of March 2nd, 1998 and the law n°98- 12 of March 2nd, 1998. Since the adoption of these two laws, the relations between the doctor and the patient evolved a lot at least in theory because, on the ground, he (it) noticed that this re-form hospitable (hospital) is unsuitable for the local realities. In reality, even if it re-forms her (it) of the Senegalese health system is ineffective in the eyes of the public opinion, states that she (it) has the merit to endow Senegal of a legal framework guaranteeing the rights of the patient in particular the access right for quality care, the right (law) for clear and appropriate information and the right (law) for free and lit consent
Chouaibi, Meriam. "Droits du patient : étude comparée entre la France et la Tunisie." Thesis, Aix-Marseille, 2016. http://www.theses.fr/2016AIXM1055.
The french legal system attaches great importance to patient rights, mainly through the law of 4 March 2002. This text was constructed to place the patient at the center of the device and assigning the rights to as a subject of law. This idea is almost absent in tunisian law. In Tunisia, legislation on the rights of patients is inadequate : the rights of patients are devoted so scattered in several legal texts. It is true that the tunisian legislature has defined certain rights for patients. However, these legislative consecrations do not allow us to confirm the idea that the patient is the center of the medical relationship, particularly because medical paternalism still finds consecration in Tunisia. The comparative study showed some convergence between the two legal systems but also important differences. Thus, for a country like Tunisia, whose health system confronts severe difficulties not only its infrastructure but also the legislative, the code of public health in general and the law of 4 March 2002 for the rights of patients, particular, can be an effective source for in-depth changes. However, if in France the Law of 4 March 2002 occupies a prominent place in the corpus of rules of health law, there is no denying that the patient's rights today facing implementation difficulties. Even if the concern of the french parliament was to maximally protect the rights of patients, some flaws still to report
Pfalzgraf, Nathalie. "Vulnérabilité et vices du consentement." Thesis, Strasbourg, 2015. http://www.theses.fr/2015STRAA028.
A recent phenomenon is the introduction in the law of less legal concepts with higher elasticity, which give the judge a broader discretion. This is the case for the concept of vulnerability. Although vulnerability was never completely absent from our law, more amazing is the fact that this notion is taken into consideration in the jurisprudence relating to defects of consent even if in contradiction with the texts of the Civil Code. If this term has been used it is because the Jurisprudence has since a long time distorted the meaning of the texts. To better understand this concept, a detour by other institutions will determine its future concerning defects of consent. The different French or European projects of contract law reform are also considering this notion. However, these discussions demonstrate that its introduction in the texts relating to the defect of consent is challenging
Jazmati, Ola. "La sécurité de la formation du contrat de vente conclu sur internet : étude comparée en droit français, égyptien et syrien." Thesis, Rennes 1, 2019. http://www.theses.fr/2019REN1G002.
The dematerialization of the sales contract gives rise to problems of confidence. This has a negative impact on the evolution of e-commerce. International legislation as well as French, Egyptian and Syrian legislation take into account the importance of trust in the digital economy. They adapt their laws to ensure the security of the contract of dematerialized sales. They do not take only measures when forming the sales contract, but they adopt also measures to ensure the probative security of this type of contract. Syrian and Egyptian laws consider only the specificity of the contract of electronic sales in terms of consumption. The peculiarity of e-commerce, however, has been dealt with by Egyptian doctrine, drawing inspiration from French civil law. The French legislator imposes measures during the formation of the contract that are stricter in terms of consumption. In this study, we considered the legal rules relating to the formation of the contract of electronic sales in order to evaluate the measures taken by the legislations which aim to reinforce the confidence in the electronic sales contract. We also analyzed the e-discovery rules for electronic modes of proof to determine whether these rules are effective with regard to the probative security of the contract
Almahmoud, Hussam. "L'arbitrage commercial international et les opérations bancaires : étude à la lumière des droits syrien et égyptien." Thesis, Aix-Marseille, 2017. http://www.theses.fr/2017AIXM0123.
The practice of business reveals the success of arbitration as a means of resolving disputes. This form of justice, promoted by important international and regional conventions, is recognized and encouraged by many national legislations. The Syrian and Egyptian Arab Republics are not so left behind this way. They have adopted important and modern texts which aimed at ensuring the effectiveness of the arbitration process and creating a favorable environment for the development of this type of dispute settlement. Yet despite a favorable legislative context, banking operators in these republics are still reluctant to resort to this form of justice. Although this resume may be justified in the case of disputes arising from the implementation of so purely internal operations, it is surprising to observe it in the case of operations which are deployed in the international order. The object of the study is therefore to highlight the prospects offered by the new legal provisions. At first, the question of "access to arbitration" is explored. Going beyond this first problem, it was still necessary to examine the way in which these national provisions frame "arbitral justice" at the stage of the proceedings as well as at the level of appeals available against the award
Diarra, Almanso. "Les relations juridiques entre le médecin, le patient et le juge judiciaire : l'exemple du Sénégal." Electronic Thesis or Diss., Paris 8, 2014. http://www.theses.fr/2014PA080054.
The protection of the rights of the patient became at the moment, a legal obligation (bond) which is imperative upon any rule of law (State subject to the rule of law). Therefore, Senegal which evolves fast is not lagging behind in the respect and the protection of the rights of the patient in particular and the human rights generally. It is from this perspective that the Senegalese legislator adopted in 1998 two complementary (additional) relative laws which re-forms her (it) of the health system to confer on the patient’s rights, which until the adoption of these laws, were considered as ethical obligations (bonds) of the doctor: The law n°98-08 of March 2nd, 1998 and the law n°98- 12 of March 2nd, 1998. Since the adoption of these two laws, the relations between the doctor and the patient evolved a lot at least in theory because, on the ground, he (it) noticed that this re-form hospitable (hospital) is unsuitable for the local realities. In reality, even if it re-forms her (it) of the Senegalese health system is ineffective in the eyes of the public opinion, states that she (it) has the merit to endow Senegal of a legal framework guaranteeing the rights of the patient in particular the access right for quality care, the right (law) for clear and appropriate information and the right (law) for free and lit consent
Durez, Clément. "La règle du jeu et le droit : contribution à l'élaboration d'une théorie juridique du jeu organisé." Thesis, Lyon 3, 2011. http://www.theses.fr/2011LYO30034.
Gaming regulations appear to have become obsolete as articles 1965 to 1967 of the Civil Code which has not been modified since1804 demonstrate. However, the successive arrival of television, computer software and internet has metamorphosed recreational activities, including gaming. Lawyers, long disinterested by gaming issues, are now surprised to see these reemerging throughout their profession. At a time when sports games still escape the “obsessive rectification” the rights of civil responsibility grant, where principles of free competition have removed the state monopoly concerning the games of chance and where televised games redefine the characteristics of work contracts, it seems to be appropriate to elaborate a global discussion on the judicial aspect of gaming. Within a framework of a general approach gaming will be studied but from the point of view of its rules in order to lay aside unregulated amusement activities to favor regulated gaming. The latter, whenever it takes place under an agreement between an organizer presenting an offer to participate and one or several players who accept, raises similar juridical questions for all types of gaming activities. Is the organizer responsible for the equipment he provides? Should he regulate access to his game? Does he have an obligation to offer a prize to the winner of a game? What are the consequences concerning the various violations of the game? Is the licitly of the established target a valid condition of the game? By seeking to elaborate on these questions, this dissertation aims to pave the way for a more appropriate judicial framework for gaming
Chicheportiche, Laura. "Les ruptures d'un commun accord du contrat de travail." Thesis, Paris 2, 2011. http://www.theses.fr/2011PA020086.
Initially relinquished, mutual agreement is now at the heart of the process of terminating the employment contract. There has been an evolution tending to the shift from suspicion towards mutual agreement as a termination device to the trust in such means. This acquired trust is best illustrated by the recognition of employment termination via mutual agreement by the Act dated June, 25th 2008. The reform introduced by this Act transformed the legal regime applicable to the termination of employment contracts. Despite the fact that Article 1134 of the French Civil Code has long granted parties the possibility to terminate the contract binding them by mutually agreeing to do so, such mode of termination has only been resorted to on a fairly limited basis. This phenomenon can notably be explained by both the lack of clear legal framework applicable to this device, and the restrictions imposed on its ambit. The recognition of termination of the employment contract via mutual agreement as a device specifically applied in the field of labor law, as well as the definition of a specific and independent regime would be likely to give rise to ending the resort to Article 1134, whose scope is only general and not specifically tailored to labor relations. The implementation of this specific regime could put an end to the monopoly held by unilateral terminations of the employment contract, particularly the method of dismissal. A broad consideration of termination of the employment contract via mutual agreement can also contribute to the appeasement and balance in labor relations
Laplaud, Ambre. "Le consentement et responsabilité médicale." Thesis, Limoges, 2019. http://www.theses.fr/2019LIMO0041.
According to Ana Marques « the true consent is the guarantee of the participation to the creation of a social cohesion. » The right relies on the Ethic, agrees with the Ethic and comes in various forms in a conditional way. This resarch aims at showing the evolutions relating to the doctor-patient relationship, viewing the consent, a concept that makes the link in this remarkable symposium. The jurist can therefore see the construction as he reads the texts and the jurisprudence. The importance of the consent takes part in the transformation of the doctor’s social position, within the social space and the doctor-patient-state relationship. From a remakable symposium emerges a new triptych. What is at stake here is that the collective and individual visions of the consent are built as opposites. Indeed, the health democracy is a rhetoric : we cannot talk about it but under concrete devices. Despite the confrontation between fundamental rights and security (especially health security), there are two opposite movements. Referring to the patient, taken in his individuality, his fundamental rights prevail but confronted to the community, this latter prevails. How can the dispute around the question of the patient's consent find a balance between these two sides ? The legislator ventures to intervene in a scientific field which is fallible because uncertain. Between what is implicit, explicit, assumed, asserted, possible or not, it is not easy to legislate and compensate a prejudice endured by a patient, user of the health system. This is where the relations between the administration, the doctors and the experts play a part via some tools : recommendations are diverted by the administration on power struggles, transforming what is legitimate for everyone. How do the legislator and the judge arbitrate and carry out an arbitrage operation in this purpose ? At the end, can the patient negociate the decisions concerning his health ? Is he in a position of compromise and mutual action ? Or does he manage to force his will in other spheres than as regards the end of life ? Isn’t the thread in the evolution of the principle of consent the respect of the dignity of a human being, the information of the consequences of the medical procedure ?
Barbier, Martine Danielle. "La volonté du salarié dans le rapport de travail." Thesis, Lyon 2, 2010. http://www.theses.fr/2010LYO22003/document.
The thesis offers to measure the role and place which law reserves for the employee’s will in labour relations. It also tries, at the same time, to identify, through the observation of certain evolutions, that the employee’s will is being more clearly taken into account. This approach necessarily goes beyond the observation generally made of the degree of the employee’s subordination and of the necessary and collective protection from which he benefits. The will, as defined by the author, supposes, as a matter of fact, a recognized field of application protected by the law through prerogatives and individual rights held by the employee which give him/her a certain degree of freedom, the ability to choose and the power to act within the labour relations. In order to cover the diversified and specific forms of voluntary action by the employee, our approach is led with regard to firstly the contractual dimension and secondly the degree by which the employer’s power affects the job relationship. The diagnostic made, which mixes closely favour and suspicion, valorization and protection of the employee’s will, shows nevertheless that this will is more systematically and radically taken into account. The orientation, engendered by positive law, is likely to announce not the end of the salaried status but on the contrary some sort of renaissance
Lee, Eunjoo. "La modification de la relation de travail : étude comparative des droits coréen et français." Thesis, Paris 10, 2019. http://www.theses.fr/2019PA100027.
The labour contract is continuous over a long period of time. The worker's working conditions could be modified or adjusted at any time during the duration of a labour relationship with various reasons. Changes in working conditions, or more generally, changes in the labour relationship directly affect the worker's private and professional life and therefore it has a profound impact on both the worker and the employer. The possibility that a worker could negotiate his labour contract with his employer at the time the contract is hard in practice. It is therefore necessary that the regime for amending the labour contract ensures that the working conditions agreed at the time of conclusion of the labour contract cannot be unilaterally modified by the employer regardless of the worker's opinion. The Korean and French legal systems are based on the binding power of a contract. It is therefore obvious that the worker's consent is required to modify the working conditions of the labour contract. The regime for modifying the labour relationship depends on limiting the employer's authority. In France, since 1996, a jurisprudential system has been introduced distinguishing between change of the working conditions and modify of the labour contract. With the evolution of precedent, the regime of modification of the labour contract focuses on the labour contract, it attaches value to the worker's opinion by considering the worker as a party to the contract. Whereas, in Korea, the precedent has focused on interpreting the exercise of employer authority on the basis of “reasonable cause”. Moreover, unlike France, where the regulation of employment has a limited scope, the Korean regulation of employment plays a similar role to that of a labour contract in practice. In this respect, if the amendment of the regulation of employment change unfavorable to the worker, the consent of the group of workers is required.Even if the consent of worker is demanded and even if the worker has a right of refusal about the suggestion of employer, the worker who refuses is still exposed to dismissal. The concept of the consent of worker is often too fragile to be satisfied with its existence. Also, it is difficult to assume that workers' consent is fully protected. Therefore, it is necessary to find method for reflect the worker's real intention. The change in the labour relationship must not be focused on the employer's exercise of authority, but must be interpreted concretely in the context of the changing work environment and the worker's professional life