Dissertations / Theses on the topic 'Obligations (droit) – Administration'
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Le, Brun Antoine. "Les décisions créatrices de droits." Electronic Thesis or Diss., Rennes 1, 2021. https://buadistant.univ-angers.fr/login?url=https://bibliotheque.lefebvre-dalloz.fr/secure/isbn/9782247226610.
Full textThrough a comprehensive study of the case law, legislation and legal literature, this thesis seeks to propose a renewed definition of the notion of decisions creating rights. In doing so, it critically analyses the legal regime applicable to this category of administrative acts. The definitional work has been carried out from both a functional perspective, relating to the revocation regime, and a conceptual perspective, relating to the effects of decisions creating rights. From a functional point of view, it appeared that the scope of the concept under study was broader than the one that is traditionally used. The category of decisions creating rights thus includes the entirety of individual administrative decisions whose withdrawal or repeal cannot be decided on a discretionary basis by the administration. As regards the effects of decisions creating rights, their main characteristic is that they are, in principle, the source of subjective public rights and administrative obligations. The establishment of a protective revocation regime is thus correlated with the potential identification of a right in a conceptual sense. This new conception of decisions creating rights opens the way to a renewed analysis of the rules governing their adoption, enforcement and revocation. Particular attention is thus paid to the guarantees which allow the beneficiary of the decision to peacefully enjoy the subjective rights and advantages of which he or she is the holder. Furthermore, emphasis is also placed on the various mechanisms which govern the execution of the administration’s obligations
Volpellière, Yoan. "L'obligation de résultat de l'Administration." Thesis, Montpellier, 2015. http://www.theses.fr/2015MONTD037/document.
Full textThe obligation of result is a fundamental concept of civil law. Built on doctrinal bases its position in law is areality. Whose main function is to regulate the relationship between a creditor and a debtor, its use has long been the exclusivity of private law. Yet its appearance in administrative law allowed to consider the public entity as debtor.The obligation of result of the Administration, is divided into two categories: the legal obligation and contractual obligation. This is a fundamental legal concept which states that "the question of the existence of two autonomous loans between separate legal orders and a priori independent of the debate on the existence of a certain unity of law, a jus universarum. Independent of its theoretical conceptualization, the obligation of result is a judicial instrument, the legislative character was forged by the courts. This demonstrates use of the aims pursued by the Administration to meet different objectives of public action. These goals differ depending on the qualifications that can be learned from the obligation.The contractual nature of the obligation has effects limited only to the sphere of contract. It's an interesting legal means allowing the Administration to continue its quest for performance. The legal obligation has a singular dimension, as it requires the Administration and comes confer creditors of the obligation genuine rights. The temptation to create a hierarchy between these obligations, the result would be to confirm the supremacy of a legal obligation on the contractual obligation of result. Especially, that the legal requirement appears more restrictive as it arises in a report that is not agreed but imposed on the public entity. This approach is not possible as the concept remains the same in both contexts. The difference therefore atttrait its training conditions. The obligation remains the same link engaging the responsibility of the public person in breach of the determined result
Ziani, Salim. "Service public et obligations de service public." Thesis, Strasbourg, 2013. http://www.theses.fr/2013STRAA011.
Full textThe « service public » is a key concept of French administrative law. It is based on the assumption that public entities are the initial guarantors of the public interest and solidarity. Today however, the « service public » was replaced by a specific notion that emerged from the law of the European Union and instead of being based on the ability of the State, it is based on the ability of the market. This concept is the «obligation de service public» (public service obligation) and it tends to regulate the role and intervention of the State in order to preserve the competition in the market. Through this change appears a new conception of the role of the State
Glazewski, Anna. "Les « obligations structurelles » de l’État au regard du droit international des droits de l’homme : recherche sur une nouvelle catégorie juridique." Thesis, Paris 2, 2018. http://www.theses.fr/2018PA020093.
Full textContemporary evolution of international law of human rights leads the doctrine to reconsider the State question. Far from being a mere functional relay allowing an effective application of international law, the State’s ‘internal apparatus’ becomes one of its subject-matter. An international law of States’ domestic organization is therefore developing through this branch of international law. ‘Structural obligations’ is one of the legal tools enabling that evolution. Indeed, beyond simple references to institutional domestic aspects, obligations prescribing how States should organize themselves in order to fully respect their human rights commitments are emerging. These obligations could not be comprehensively described through classical typologies of obligations, so a new one needs to be elaborated and confronted with the international law of human rights practice
Gosselin, Jessica. "Analyse différenciée entre les sexes, gouvernance et progression égalitaire : étude de la compatibilité du droit constitutionnel canadien aux obligations relatives à l'égalité par l'exemple du Plan Nord." Thesis, Université Laval, 2014. http://www.theses.ulaval.ca/2014/30626/30626.pdf.
Full textThis study purports to analyze the government of Quebec’s obligations with respect to sex-based equality in the elaboration of the PLAN NORD. We address this issue with an approach combining the State’s obligations resulting from the right to sex-based equality in Canada, the governance issue raised in major projects such as the PLAN NORD and the implementation of gender-mainstreaming analyses as a means to achieve substantive equality. We take the position that the right to sex equality guaranteed under Section 15 of the Canadian Charter of Rights and Freedoms imposes on the State a positive obligation to act. This conclusion is supported by Canada’s international agreements, social policies favoring the implementation of gender-mainstreaming analyses and the often reiterated position of the Supreme Court of Canada pursuing substantive equality. Gender-mainstreaming is presented as to be the subject of a formal constitutional recognition and as a means to achieve equality in Canada.
Schröder, Hanna. "Entre exorbitance et droit commun : le contrat de l'administration en droit européen : étude comparée des droits français et allemand dans leurs interactions avec le droit de l’Union européenne." Thesis, Strasbourg, 2016. http://www.theses.fr/2016STRAA012.
Full textThe present study analyzes the law applicable to contracts of French, German and European administrations, as well as evolutions triggered in French and German law by EU law, and brings into focus a circulation of models between EU and national law. These interactions show how the original parameters of national legal orders influence the latters’ way of integrating European requirements, which in return allows drawing conclusions concerning European law itself. In this context, studying French and German law (antagonist models concerning contracts of public administrations), putting them in perspective with contracts in internal EU law and analyzing the evolutions triggered by the impact of EU law, highlights that the issue of the articulation of specific powers and duties of the contracting administration with the contractual obligations of the parties is central in the relationship between European law and contracts as a tool for the action of national and European administrations
Hennequin-Marc, Lucile. "La propriété intellectuelle des personnes publiques." Thesis, Paris 2, 2016. http://www.theses.fr/2016PA020052/document.
Full textIntellectual Property (IP) is enough polymorphic to be applied to both private individuals and publicentities (understood as the State, administrative districts having legal personality, and public institutions). This is not about denying the specificity of public entities, who are entrusted with particular prerogatives, and subjected to specific rules because of their identity and the nature of their missions. The purpose of our study is to demonstrate that IP submits both public entities and private individuals to a common legal system, which is set to meet the requirements inherent to public entities. Thus, public entities have expanded powers over private individuals, through acquisition and exploitation of their intellectual assets. This is the expression, in IP, of the specific prerogatives thatpublic entities enjoy as part of their missions. However, public entities are also subjected to strengthened bonds, which are the result of general obligations placed upon them, such as the protection of public assets. Finally, the emergence of new dynamics related to IP such as open data represents a major evolution of this science that public entities must understand to adapt to new challenges of public IP
Noguellou, Rozen. "La transmission des obligations en droit administratif /." Paris : LGDJ, 2004. http://www.gbv.de/dms/sbb-berlin/478452179.pdf.
Full textNoguellou, Rozen. "La transmission des obligations en droit administratif." Paris 2, 2002. http://www.theses.fr/2002PA020047.
Full textShwekat, Aïad. "Les droits et les obligations des parties du contrat administratif dans le droit français et libyen : étude comparative." Thesis, Toulouse 1, 2016. http://www.theses.fr/2016TOU10013/document.
Full textThis thesis is entitled: “The rights and obligations of the parties of the administrative agreement between the French and Libyan rights. Comparative analysis”. The first part deals with the powers of the administration against its contractor; the powers available to the administration are all rights exercised in respect of the other party, it derives its legal prerogatives in the organization of the management of public services and constitute the axis of its action. The administration and execution has the power to control the administrative contract, the unilateral power of amendment of that contract and the power to impose penalties to the other contracting party if it breached its contractual obligations. The second part was devoted to the rights and obligations of the contracting party. It derives its rights of administrative contract and the administration will have to enforce it so that it can carry out its duties, the most important are the financial rights which constitute the real motivation that led him to contract. In return for these rights, many obligations weighing on the other party and among them the most notable are those of personal performance that must be taken in a timely manner
Grabias, Fanny. "La tolérance administrative." Thesis, Université de Lorraine, 2016. http://www.theses.fr/2016LORR0301.
Full textFor quite some time, the administrative tolerance was characterized by a precarious situation for those who beneficiate from it. The Administration could indeed abruptly decide to operate a strict return to lawfullness. Nowadays, this traditional conception is being questionned by the recent evolution of positive law. Regarding an irregular construction on public land, The European Court of Human Rights ruled in favor of the administrative tolerance's beneficiary, acknowledging his right to have his property respected. The caesura existing between French and European law is worthy of further study. First of all, rises the necessity of a definition. Thereupon, the legal notion of administrative tolerance refers to the fact, for an administrative authority, to willingly and illegaly abstain from using the means in its power to sanction the irregularity perpetrated by an administered. The notion of administrative tolerance is often mixed up with others, hence the need for a definition as a starting point. The next step would then be to suggest a legal regime, oriented towards the beneficiaries of the tolerance. Based on the idea that the legitimate trust emanating from some tolerances must be respected, such a regime would notably prevent the Administration from revising its position
Clerc, Ludivine. "La validité des contrats administratifs." Avignon, 2007. http://www.theses.fr/2007AVIG2014.
Full textThe public service contract is a concrete norm of public law, stemming from an agreement of will (being), which imposes a commandment (duty-being). It is about an individual norm the conditions of formal validity of which postpone from those contracts of common law. Indeed, the public service contract being surrounded with one-sided acts, the legality of its acts "peripherals" constitutes a condition of validity of the public service contract. All the more, the opening of the appeal for abuse of power to a specific category of contracts consolidates the thesis according to which the validity of the contract is subjected to the legality. However, the administrative judge privileges a "administrative reading" of the case law setting up the contractual law and order as condition of validity. He refers only punctually to the provisions of the article 1108 of the civil Code. This peculiarity tends to question a general theory of the obligations, in spite of the premature intervention of the unilateralism in the common law of contracts
Grabias, Fanny. "La tolérance administrative." Electronic Thesis or Diss., Université de Lorraine, 2016. https://buadistant.univ-angers.fr/login?url=https://bibliotheque.lefebvre-dalloz.fr/secure/isbn/9782247182114.
Full textFor quite some time, the administrative tolerance was characterized by a precarious situation for those who beneficiate from it. The Administration could indeed abruptly decide to operate a strict return to lawfullness. Nowadays, this traditional conception is being questionned by the recent evolution of positive law. Regarding an irregular construction on public land, The European Court of Human Rights ruled in favor of the administrative tolerance's beneficiary, acknowledging his right to have his property respected. The caesura existing between French and European law is worthy of further study. First of all, rises the necessity of a definition. Thereupon, the legal notion of administrative tolerance refers to the fact, for an administrative authority, to willingly and illegaly abstain from using the means in its power to sanction the irregularity perpetrated by an administered. The notion of administrative tolerance is often mixed up with others, hence the need for a definition as a starting point. The next step would then be to suggest a legal regime, oriented towards the beneficiaries of the tolerance. Based on the idea that the legitimate trust emanating from some tolerances must be respected, such a regime would notably prevent the Administration from revising its position
Cornu, Julie. "Droit au procès équitable et autorité administrative." Thesis, Paris 2, 2014. http://www.theses.fr/2014PA020068/document.
Full textThe right to a fair trial is enshrined in the article 6§1 of the European Convention on Human Rights and irradiates now all French law. In the context of the subjectivization of the law, administrative law is also subject to this "unstoppable rise of disputes in the name of the right to a fair trial" (Mrs. KOERING-JOULIN). This assertion is particularly true regarding the powers of sanction and the settlement of disputes granted to the administrative authorities. The European definition of the right to a fair trial applied by the Court of Cassation and adapted by the Council of State allows a wide application of this right. So, given the current state of the administrative case law, the right to a fair trial can be usefully claimed against independent administrative authorities as regard either their law enforcement activities or litigation practice. And the tax administration has also been compelled to respect this fundamental right for eight years now. In line with this settled jurisprudence, the extension of the right to a fair trial to all the administrative authorities may be the way of the future. But such an evolution raises a few questions. Isn't the increasing jurisdictionalization of the administration activities as a result of the right to a fair trial an inconsistency in itself? Doesn't it go against the primary goal of the outsourcing of the administrative penalties? More fundamentally, doesn't subjecting the administrative authorities to the specific principles of court procedures participate in reinstating some confusion between administration and jurisdiction? Isn’t it the rebirth, under a new form, of the administrator-judge we thought was long gone?
Abdel-Hamid, Sarwat. "Obligations et responsabilité du fabricant de produits dangereux." Montpellier 1, 1989. http://www.theses.fr/1989MON10026.
Full textGallo, Carole. "La décision conditionnelle en droit administratif français." Thesis, Paris 2, 2017. http://www.theses.fr/2017PA020046.
Full textConditional decisions remain much overlooked in the legal scholarship on French administrative law. Wrongfully considered as the exclusive province of the specialist on unilateral administrative acts, conditional decisions have received the attention of public lawyers only in so far as they come to present a risk for the protection of aquired rights. This goes some way to explaining both the scarcity of doctrinal contributions to a definition of the concept of a conditional decision – autonomous from the paradigm of the obligations in French civil law –, and the difficulties encountered in trying to bring some clarity to the subject by attempting to determine precisely the boundaries of the notion. Nevertheless, recent turns taken by the administrative courts, and more recently by codifiers, do call for a clear and consistent definition. The case law has for long considered these legal acts as unilateral acts, thus subjecting conditional decisions to the corresponding legal principles. Despite this, the legal scholarship on the question has never managed to fully integrate conditional decisions in either branch of the main binary subdivision – contracts and unilateral acts –, ill-using both in order to stress the highly unusual character of the notion (for instance underlining the peculiar relevance of an analysis of this unilateral decision in contractual terms). This unusual object therefore forces us to reevaluate our traditional classifications, which otherwise systematically result in a severe inconsistency between substantive law and its doctrinal exposition. In order to do so, the theoretical tools and approaches used up to now must be renewed. This doctoral dissertation aims to reconcile the positive law and its doctrinal exposition, thus proposing a clear definition of the condition itself as a legal norm in its own right – both dependant on, and distinct from, the other provisions of the decision it is attached to – the function of which is to modulate the effects over time of the main decision. These proposed elements of definition come to reveal a unified and coherent legal status of the conditional decision in administrative law
Camguilhem, Benoit. "Recherche sur les fondements de la responsabilité sans faute en droit administratif." Thesis, Paris 2, 2012. http://www.theses.fr/2012PA020060.
Full textCause of liability has been one of the most discussed questions since the principle of administrative irresponsibility was given up. Sometimes seen as a general principle of explanation, sometimes as a legal rule, cause of liability is an element of justification. In order to clarify the discourse on liability, cause of liability has to be distinguished from principles which justify the legal rule of liability. For doctrine and jurisprudence, the risk theory and the principle of public expenses equality are the two causes of liability. This presentation has to be renewed because of the creation by the Conseil d’Etat of cases of liability in which the proof of a fault is not compulsory but which do not relate to classical cases. A new presentation with two categories based on the notion of obligation should be preferred. When the event giving rise to the damage ignores a pre-existing obligation it is a true system of responsibility but when the event giving rise to the damage doesn’t ignores such an obligation it is a mechanism of guarantee and not a system of responsibility. “Liability without fault” is a negative category with no unity and no specific causes. Fault is only a condition of liability: liability with fault and liability without fault are not different in nature
Gallo, Carole. "La décision conditionnelle en droit administratif français." Electronic Thesis or Diss., Paris 2, 2017. https://buadistant.univ-angers.fr/login?url=https://bibliotheque.lefebvre-dalloz.fr/secure/isbn/9782247191697.
Full textConditional decisions remain much overlooked in the legal scholarship on French administrative law. Wrongfully considered as the exclusive province of the specialist on unilateral administrative acts, conditional decisions have received the attention of public lawyers only in so far as they come to present a risk for the protection of aquired rights. This goes some way to explaining both the scarcity of doctrinal contributions to a definition of the concept of a conditional decision – autonomous from the paradigm of the obligations in French civil law –, and the difficulties encountered in trying to bring some clarity to the subject by attempting to determine precisely the boundaries of the notion. Nevertheless, recent turns taken by the administrative courts, and more recently by codifiers, do call for a clear and consistent definition. The case law has for long considered these legal acts as unilateral acts, thus subjecting conditional decisions to the corresponding legal principles. Despite this, the legal scholarship on the question has never managed to fully integrate conditional decisions in either branch of the main binary subdivision – contracts and unilateral acts –, ill-using both in order to stress the highly unusual character of the notion (for instance underlining the peculiar relevance of an analysis of this unilateral decision in contractual terms). This unusual object therefore forces us to reevaluate our traditional classifications, which otherwise systematically result in a severe inconsistency between substantive law and its doctrinal exposition. In order to do so, the theoretical tools and approaches used up to now must be renewed. This doctoral dissertation aims to reconcile the positive law and its doctrinal exposition, thus proposing a clear definition of the condition itself as a legal norm in its own right – both dependant on, and distinct from, the other provisions of the decision it is attached to – the function of which is to modulate the effects over time of the main decision. These proposed elements of definition come to reveal a unified and coherent legal status of the conditional decision in administrative law
Loheac-Derboulle, Philippine. "Le tiers en droit de la responsabilité administrative." Thesis, Tours, 2012. http://www.theses.fr/2012TOUR1003.
Full textThe third party is commonly defined as the person who is foreign to a group or a situation; therefore we might think that the law has no reason to be focused on it and that it then devotes no space to him. The study on the third party in law of administrative responsibility yet reveals the opposite. This thesis aims to demonstrate that, while it is particularly difficult to identify it and, thereby, to define it, the third party is real and play an undeniable role: it is likely to exert influence on incurred liability, before the administrative law judge, by the administration (or by any person who is y equated). However, a distinction must be made according to the situation of the third party in relation to the damage. There is indeed a plurality of third parties. They are nevertheless likely to be divided into two categories: third parties victims and third parties authors or co-authors. Specific legal consequences are actually attached to the identification of the third party victim. Recognition of such quality is particularly likely to lead to the application of a legal regime with features compared to the one which is usually applied to the other categories of victims. Therefore, the question of the existence of a law of administrative responsibility for the damages caused to third parties arises. The relative nature of this topic’s specificity, combined with the lack of unity; however lead to a negative answer.The third party author or co-author, may also affect the responsibility of the administration. The administrative judge is actually likely to take into account the intervention of a third party in the production of the damage and, consequently, to vary the share of responsibility of the person prosecuted. This can be done immediately, i.e. as part of the relationship between it and the victim, in particular when the administrative judge implements the third’s act theory. This can also be done later, i.e. as part of the relationship between the co-authors and/or the co-responsible for the damage, when it comes to apportion among themselves the final burden of debt relief. However, in the interest of the victim’s protection and as applied in civil law, to take account of the role of the third party in the realization of the damage in a deferred way must be preferred to its immediate consideration
Khalifa, Milad. "La protection du consommateur en droit libyen à la lumière du droit français." Thesis, Rennes 1, 2018. http://www.theses.fr/2018REN1G006.
Full textThanks to the emergence of a market economy and more recently of the technological revolution, consumer law has been significantly developed. Therefore, consumer protection was required as the means to rebalance the unequal relations between the consumer, regarded as the weaker party to the complex contractual relation, and the professional for whom the power balance is in favour.In this context, the interest of a study about consumer protection in Libyan law in the light of French law is clearer and can be approached from two angles : on the one hand, it is scientifically challenging to understand how a State like Libya, whose opening up to the world and the private sector development are very recent, integrates consumer protection into its legal system. On the second hand, comparing it with French law provides an added value, because the level of consumer protection in Libyan law has to be measured through French consumer law which is more developed. The comparative approach is relevant in this research as one of the functions of comparative law is to improve the national substantive law.Here, according to the starting hypothesis, consumer law in Libya is underdeveloped compared to French consumer law. So, the comparative approach aims to help improving consumer law in Libya if the starting hypothesis is confirmed. Therefore, we studied consumer protection from the precontractual period to the after contract period including the actual contract conclusion in both legal orders.This research shows that the Libyan consumer is less protected than the French consumer. This is due, amongst others, to socio-political and economic factors, in this case, the low development of the private sector and the low level of the culture of justice which does not enable to develop case-law regarding consumer law. This study has also proved that the Libyan legislator is facing a new challenge, that is, the emergence of distance contracts, which makes consumer protection even more complex
Kondylis, Vassilios. "Le principe de neutralité dans la fonction publique." Paris 1, 1991. http://www.theses.fr/1991PA010263.
Full textThe examination of the situation of the French civil servants as well as the British and the American ones, from the French revolution till today, proves clearly one variant determination of the legislator and the administrative judge, with unequal results, to eradicate the different types of politicization in the administration of the civil service. But the civil servant has not become a politically diminished citizen, in contrast to that which occured in Great-Britain and the United States. The effort to protect neutrality of the civil service resulted in the adoption of the different laws (statutes) which, from 1946, constitutes one efficient way to shield the (French) civil service from the partisan pressures by assuring its independance impossible without the subordination to the political power. But there are still multiple causes of politicisation. The increasing participation of the civil servants in politics ("fonctionnarisation du pouvoir politique"), the politicization if the higher civil service and syndicalism are also factors which accent the interest int he current debates concerning the better protection of neutrality
Peketi, Essodjilobouwè. "Essai critique sur la notion d’homologation judiciaire." Thesis, Paris 2, 2018. http://www.theses.fr/2018PA020078.
Full textJudicial approval shows in a remarkable way how the function of judging contains different aspects. This Judicial activity is in itself a judicial procedure which ensures the control of agreements validly concluded between parties or which will become valid if their conformity with the requirements of substantive law is judicially recognized / if their conformity with the requirements of substantive law is established/ if these agreements fulfil the conditions required by the substantive law.If there is no doubt that the process of judicial homologation is unique, it must be however observed that the homologation procedures according to their purposes are distinct from each other. In fact, the procedural rules of judicial approval/judicial depend considerably on the substantive law to be applied. That’s why, it can be said in this context, that substantive law controls procedural law; for it is substantive law which determines the judge's procedural conduct when judicial approval is requested. The degree or level of the judicial control exercised over the agreements of the parties is a proof of this.What about the registration judgment regime? It is inspired by the substantive law of each subject in which the registration judgment is rendered. We could give more examples. Let us confine ourselves to the authority of res judicata, allowed in the approved agreement on divorce by mutual consent, and refused in the approved notarial deed on change of matrimonial regime. The authority of res judicata is also considered to be admitted for certified transactions in administrative matters, but rejected for certified transactions in civil matters. These brief indications probably support the idea that judicial homologation is primarily a matter of substantive law. In other words, contrary to what is often said in doctrine, homologation is a matter of substantive law before it is a procedural matter
Beddiar, Nadia. "Le mineur délinquant face au service public pénitentiaire." Thesis, Lille 2, 2011. http://www.theses.fr/2011LIL20017/document.
Full textThe correctional institution is experiencing a profound process of modernization under the influence of European and constitutional law, which tends to assign to it all the characteristics of a public service and significantly adds to the law of enforcement of sentences.This normative development, under the control of an administrative judge, has introduced the basis of a genuine legal status for minors as coerced users of this public service. Efforts carried out by the penitentiary administration in the aim of establishing detention rules that apply and are adjusted to the different categories of prison population, and particularly to minors, are changing the traditional/classic conception of the prison‟s missions.The specificity of detention rules, as confirmed by the creation of detention facilities for minors and the search for a legal status for the minor inmate, is endorsed by the opening up of the penitentiary administration and the building of partnerships with other institutional actors.The mobilization of new resources constitutes a fundamental axe in the preparation of the social rehabilitation of minors, in their own best interest and benefit. The issues around the correctional framing in the objective to define the administrative status of the minor inmate lead to double angled analysis: the fixing of the foundations of prison law applicable to minors, and the application of this law which illustrates the need for an adaptation of the penitentiary action when it comes to minors
Ducharme, Théo. "La responsabilité de l'Etat du fait des lois déclarées contraires à la Constitution." Thesis, Paris 1, 2018. http://www.theses.fr/2018PA01D022.
Full textThe responsibility of the State for unconstitutional statutes, which is among the last islets of sovereign immunity, is about to be enshrined in French law. The flourishing of a constitutional mode of parliamentary sovereignty as expression of the general will, completed by the entry into force of an original form of indirect concrete review of parliamentary legislation -the so-called "priority preliminary ruling on the issue of constitutionality" (Question prioritaire de constitutionnalité) -, led the Paris Administrative tribunal to recognize a legal remedy allowing the compensation for damages resulting from the application of an unconstitutional statute. Indeed, by virtue of the constitutional principle of responsibility, which the Constitutional Council has derived from article 4 of the Declaration of 1789, the State is held accountable for the unlawful acts committed by its legislative body. In this kind of situation, if an act cannot be considered "unlawful" on the basis of the State's responsibility because of laws that disregard France's international commitments, it can always be so on the basis of the responsibility of the State for unconstitutional statutes. The constitutional principle of responsibility, as a legal basis, constitutes a norm that confer power to the administrative judge to qualify the unconstitutionalities pronounced by the Constitutional Council as a fault of a nature to engage the responsibility of the State. The parliamentary legislation is no longer this indisputable and uncontested act. From now on, any irregularity in a legislative provision can justify engaging the responsibility of the State
Vitour, Agathe. "Le mandat d’intérêt général : d’un acte condition à une nouvelle logique de l’action publique." Thesis, Angers, 2018. http://www.theses.fr/2018ANGE0069.
Full textEver since the treaty of Rome, the European law has organized a derogation of the competition law for undertakings entrusted with the operation of services of general economic interest founded on the current article 106 § 2 of TFEU, without specifying the conditions of its implementation. Then, diverse case law has been developped. The Commission intervened through Monti-Kroes and Almunia packages to clarify the imlpementation of this derogation. The notion of entrustment is then introduced in the European law for the first time.This notion has been taken back in the article 2 point 2 point j of the EU’s services directive as a derogation of free provision of services for undertakings entrusted with the operation of social services. If the essence of entrustment seems easily recognizable, granting a derogation to the rules of competition law to undertakings entrusted with the operation of services of general economic interest, its nature is more complex to determine. The entrustment is characterized by the meeting of material and organic criteria : the existence of a SEIG, the necessity of granting a derogation in the rules of competition law and the existence of an act detailing the public service obligations and the compensation mechanism. The entrustment is a sort of « act-condition ». If it seems to allow a nex renewed of the subsidiarity principle, the European institutions control through the manifest error of appreciation. The entrustment is little used in French law and the criteria fixed by the European law are applied in an incorrect way
Quesne, Aloise. "Le contrat portant sur le corps humain." Thesis, Normandie, 2018. http://www.theses.fr/2018NORMC028.
Full textThe human body has not escaped the movement of protean contractualization that is becoming more widespread. In this sense, our thesis made it possible to demonstrate the existence of a new legal category: that of the contract relating to the human body. It is a contractual genus that houses many species. The specificity of these contracts and the heterogeneity of the rules governing them is not an obstacle to their systematization: the contract relating to the human body is an agreement of will by which one of the parties makes his body available to the other for the performance of the service agreed between them. Under this contract, the contracting partner exercises material power over the body placed at his disposal. The service can be performed on or through the body provided. A common regime has been updated. Indeed, the legislator lays down information obligations to enlighten the consent of the weaker party, extinctive potential rights are also granted to him so that his consent can always be revoked and a framework for bodily safety is necessarily ensured. This study led to the elaboration of a classification of contractual species, which allows us to benefit from an overview of these contracts and to understand that each of them must be assessed according to the act envisaged and the body made available. As a result, specific rules apply, which are entirely dedicated to the protection of the body and, therefore, of human dignity
Parinet, Pauline. "La carence de l'administration." Thesis, Tours, 2017. http://www.theses.fr/2017TOUR1012/document.
Full textThe deficiency of the administration is meaningful and also ambiguous. Meaningful as it brings back administrative bad memories for every citizen. But ambiguous, for jurists, as the deficiency naturally reminds them of many terms which are very close, such as lethargy or abstention. Nevertheless, the deficiency has to be distinguished from these terms and can be defined as the result of some inactions : the ones which should not have happened. The recognition of the administrative deficiency has thus a function : highlighting an unacceptable passive behaviour. What it means an insufficient use of its means to fulfil its mission and an abusive abstention. So, the abnormal nature of this inaction highlighted by this recognition needs a reaction of the legal system, in order to condemn this noted lack, jurisdictionally or not
Beddiar, Nadia. "Le mineur délinquant face au service public pénitentiaire." Electronic Thesis or Diss., Lille 2, 2011. http://www.theses.fr/2011LIL20017.
Full textThe correctional institution is experiencing a profound process of modernization under the influence of European and constitutional law, which tends to assign to it all the characteristics of a public service and significantly adds to the law of enforcement of sentences. This normative development, under the control of an administrative judge, has introduced the basis of a genuine legal status for minors as coerced users of this public service. Efforts carried out by the penitentiary administration in the aim of establishing detention rules that apply and are adjusted to the different categories of prison population, and particularly to minors, are changing the traditional/classic conception of the prison’s missions. The specificity of detention rules, as confirmed by the creation of detention facilities for minors and the search for a legal status for the minor inmate, is endorsed by the opening up of the penitentiary administration and the building of partnerships with other institutional actors. The mobilization of new resources constitutes a fundamental axe in the preparation of the social rehabilitation of minors, in their own best interest and benefit. The issues around the correctional framing in the objective to define the administrative status of the minor inmate lead to double angled analysis: the fixing of the foundations of prison law applicable to minors, and the application of this law which illustrates the need for an adaptation of the penitentiary action when it comes to minors
Sevgili, Fatma Didem. "La responsabilité de l'Etat et des collectivités territoriales. Les problèmes d'imputabilité et de répartition." Thesis, Lyon 3, 2011. http://www.theses.fr/2011LYO30004/document.
Full textThe problem of determining the person public responsible has two points: first step is finding a debtor to indemnify the victim second step is distribution of the financial load among those responsible for compensation of the damage. There are three criteria used by the administrative judge to determine the person responsible public: organic criterion, functional criterion and decision criterion. Yet none of them is sufficient to explain all cases of responsibility. However; in principle we can say that the responsibility follows the competence. In this instance it becomes particularly important to determine the powers of the different public bodies, but in reality it is not always perfectly characterised. On the other hand, concerning the distribution of the load compensation two criteria can be used one of them is the severity of each fault, the other one is the causal roles of each co-responsible on the formation of the damage
Kardimis, Théofanis. "La chambre criminelle de la Cour de cassation face à l’article 6 de la Convention européenne des droits de l’homme : étude juridictionnelle comparée (France-Grèce)." Thesis, Lyon, 2017. http://www.theses.fr/2017LYSE3004.
Full textThe first party of the study is dedicated to the invocation of the right to a fair trial intra and extra muros and, on this basis, it focuses on the direct applicability of Article 6 and the subsidiarity of the Convention and of the European Court of Human Rights. Because of the fact that the right to a fair trial is a ‘‘judge-made law’’, the study also focuses on the invocability of the judgments of the European Court and more precisely on the direct invocability of the European Court’s judgment finding that there has been a violation of the Convention and on the request for an interpretation in accordance with the European Court’s decisions. The possibility of reviewing the criminal judgment made in violation of the Convention has generated a new right of access to the Court of cassation which particularly concerns the violations of the right to a fair trial and is probably the most important step for the respect of the right to a fair trial after enabling the right of individual petition. As for the weak conventional basis of the authority of res interpretata (“autorité de la chose interprétée”), this fact explains why an indirect dialogue between the ECHR and the Court of cassation is possible but doesn’t affect the applicant’s right to request an interpretation in accordance with the Court’s decisions and the duty of the Court of cassation to explain why it has decided to depart from the (non-binding) precedent.The second party of the study is bigger than the first one and is dedicated to the guarantees of the proper administration of justice (Article 6§1), the presumption of innocence (Article 6§2), the rights which find their conventional basis on the Article 6§1 but their logical explanation to the presumption of innocence and the rights of defence (Article 6§3). More precisely, the second party of the study is analyzing the right to an independent and impartial tribunal established by law, the right to a hearing within a reasonable time, the principle of equality of arms, the right to adversarial proceedings, the right of the defence to the last word, the right to a public hearing and a public pronouncement of the judgement, the judge’s duty to state the reasons for his decision, the presumption of innocence, in both its procedural and personal dimensions, the accused’s right to lie, his right to remain silent, his right against self-incrimination, his right to be informed of the nature and the cause of the accusation and the potential re-characterisation of the facts, his right to have adequate time and facilities for the preparation of the defence, including in particular the access to the case-file and the free and confidential communication with his lawyer, his right to appear in person at the trial, his right to defend either in person or through legal assistance, his right to be represented by his counsel, his right to free legal aid if he hasn’t sufficient means to pay for legal assistance but the interests of justice so require, his right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him and his right to the free assistance of an interpreter and to the translation of the key documents. The analysis is based on the decisions of the European Court of Human Rights and focuses on the position taken by the French and the Greek Court of Cassation (Areopagus) on each one of the above mentioned rights
Parent, Sébastien. "Les conséquences juridiques de la coexistence de l’obligation d’accommodement raisonnable et du régime public de réparation des lésions professionnelles." Thèse, 2016. http://hdl.handle.net/1866/18632.
Full textSuite à l’étude de la genèse de deux régimes occupant une place fondamentale en droit du travail québécois, soit le régime public de réparation des lésions professionnelles institué par la Loi sur les accidents du travail et les maladies professionnelles, et l’obligation d’accommodement raisonnable, issue du droit à l’égalité consacré à l’article 10 de la Charte québécoise, ce mémoire s’intéresse au déploiement du conflit normatif et du conflit juridictionnel découlant de l’évolution en parallèle de ces deux sources d’obligations pour les employeurs, dont l’objet est la réintégration et le maintien du lien d’emploi du salarié atteint d’un handicap. Cette étude propose ensuite d’explorer les conséquences juridiques de la solution retenue par la Cour d’appel du Québec, dans l’arrêt Caron rendu en juin 2015, laquelle décide de juxtaposer une obligation d’accommodement raisonnable au régime public de réparation des lésions professionnelles. Ainsi, ce mémoire met en évidence les conséquences en droit constitutionnel canadien et quasi constitutionnel québécois de la démarche utilisée dans l’arrêt Caron et des résultats auxquels elle a conduit, en recentrant la place du droit à l’égalité en droit public et en discutant de ses impacts sur la séparation des pouvoirs. En outre, ce revirement jurisprudentiel engendre maintes difficultés au regard de la particularité du droit administratif, plus spécifiquement quant au rôle et aux pouvoirs limités de la C.N.E.S.S.T. et du T.A.T.-D.S.S.T. Enfin, cette analyse fait ressortir que la solution retenue par la Cour d’appel porte atteinte à l’équilibre que s’efforce de maintenir ce régime public reposant sur un important compromis social.
Following the review of the genesis of two fundamental regimes in Quebec labour law, the public system that provides repairs to injured workers, established by the Act respecting industrial accidents and occupational diseases, and the duty to provide reasonable accommodation arising from the right to equality under section 10 of the Quebec Charter, this thesis focuses on the development of the normative conflict and the jurisdictional conflict stemming from the parallel evolution of these two sources of obligations for employers. Both of these are based on the reinstatement of disabled workers and the continuation of their employment relationship. This study proposes to explore the legal consequences of the solution adopted by the Quebec Court of Appeal in Caron’s case, dated June 2015, in which the Court decided to overlay the employer’s duty to accommodate onto the Workers’ Compensation public system. Thus, emphasizing on the role that the right to equality plays in public law and discussing its impact on the separation of powers, this thesis shows the consequences from the approach used in the Caron judgment and its particular results through Canadian constitutional and Quebec quasi-constitutional principles. Furthermore, this significant change gives rise to many difficulties regarding the particularities of administrative law, and more specifically, the role and the limited powers of C.N.E.S.S.T. and T.A.T.-D.S.S.T. Finally, this analysis highlights that the solution held by the Court of Appeal infringes on the balance attempted by the public system based on an important social compromise.