Dissertations / Theses on the topic 'Théorie des droits fondamentaux'
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Nivert, Nirmal. "Intérêt général et droits fondamentaux." Thesis, La Réunion, 2012. http://www.theses.fr/2012LARE0028/document.
Full textHow can Law define the concept of Liberty? In which ways does the theory of Law and Public Law define Liberty? Being virtually impossible to define, Liberty eludes any constraints. Nevertheless, one can sense it and on a daily basis can verify that the Liberty of some will inevitably clash with the Liberty of others. We suggest that public interest is an essential means of mediation enabling our fundamental rights to coexist. What is at stake in this study is the relationship between public interest and fundamental rights. This relationship can be of two kinds. On the one hand, insomuch as public interest is a political and legal notion intended to define rights and liberties, it is deeply rooted in fundamental rights. We will analyze the essential relationship which links public interest and fundamental rights. On the other hand, it is important to reconcile public interest and fundamental rights by conceptualizing public interest. We will therefore examine the existential relationship between fundamental rights and public interest.However, this analysis reveals that public interest remains a political concept, which has been given a legal function. It nonetheless contributes to defining the concept of Liberty. It demonstrates that a Law which would annihilate Liberty on principle would annihilate itself
Poinsignon, David. "La protection des droits fondamentaux par l'Union européenne : éléments pour une théorie de la Fédération de droit." Thesis, Normandie, 2019. http://www.theses.fr/2019NORMC020.
Full textThe protection of fundamental rights by the European Union and the issue of the Union's legal nature are not isolated. On the contrary, they are deeply linked. The Union can be classified in the category of federalism under the effect of the protection of fundamental rights. In return, this federative nature has an influence on the protection of fundamental rights. The protection of fundamental rights and the nature of the Union together form the identity of the Union. This identity could be a federal rule of law (Fédération de droit)? This hypothesis, which is based on the rule of law model and the requirements of cosmopolitanism, aims at a Federation whose founding objectives include the protection of fundamental rights. This hypothesis offers some keys to understanding how the federalization process and the protection of fundamental rights are articulated. However, the relationship between this process and the protection of fundamental rights is often conflictual. There are many obstacles to this qualification. Indeed, Member States wish to preserve their sovereignty. The imperatives of economic federalism or the expectations of federal security also raise multiple concerns. These obstacles impact both the federalization process and the protection of fundamental rights. In conclusion, they prevent this qualification of european federal rule of law
Poama, Andrei. "La justice corrective : éléments pour une théorie de la peine." Thesis, Paris, Institut d'études politiques, 2015. http://www.theses.fr/2015IEPP0023.
Full textThis dissertation provides a theory of punishment that is formulated by means of a conception of corrective justice. The concept of corrective justice and its corresponding conception draw on the ethical and moral theory of Aristotle. The corrective conception is meant to apply to the contemporary legal systems of France and the United States. As interpreted here, the principle of corrective justice argues that punishment is justified when and insofar as it tends to rectify a specific, inter-personal inequality resulting from a violation of the basic rights of the victim by the offender. Corrective justice thus pertains to the domain of interpersonal injustices. Aristotle was the first one to formulate the concept of corrective justice in Book V of the Nicomachean Ethics. It was also Aristotle who, for the first time, made a connection between the norms of corrective justice and the practice of punishment. The corrective conception takes its distance from the two main alternative conceptions of punishment, which are based on the idea of distributive and retributive justice. Neither of these two latter conceptions views the relationship between the individual victim and the individual offender as normatively prior; nor do they see basic rights as necessary and sufficient grounds for punishing. Seen from a corrective standpoint, penal justice is strictly located at the level of the relationship that connects the offender to his or her victim. Unlike its main contenders, corrective justice is deeply anchored in a bilateral justificatory structure. The suffering of the offender advocated by retributive conceptions or the existence of socially beneficial effects defended by distributive theories can arguably be interpreted or explained as side-effects of legal punishment, but they cannot offer a normative basis for punishing
Shams, Bamdad. "Le conflit de lois et la production privée des droits fondamentaux : vers un renouveau théorique." Thesis, Paris, Institut d'études politiques, 2019. http://www.theses.fr/2019IEPP0014.
Full textIn a world characterized by a multiplicity of sites of law production, more and more non-state actors act as private lawmakers. The traditional view defended by supporters of legal pluralism is that private actors only produce informal norms supporting private interest. However, those private lawmakers also produce norms that promote and protect fundamental rights and freedoms within corporations’ sphere of influence. These new types of private norms are autonomous, binding upon its subjects, and are not subject to the autority of state law. As a consequence, a new kind of conflicts can arise between state law and non-state law in the fundamental rights area. The purpose of this thesis is to show how private international law can go beyond its traditional function to deal with these hybrid conflicts which do not fall neither within the conflict of laws, nor the traditional human rights methodology. These particular conflicts could be adequately solved through the application of principles such as primacy, subsidiarity and proportionality. These principles could serve as the basis for a humanist approach to private international law, which would lead to the application of the most protective norm for human beings regardless of its origin
Lampron, Louis-Philippe. "L'existence d'une hiérarchie juridique favorisant la protection des convictions religieuses au sein des droits fondamentaux canadiens." Phd thesis, Université d'Avignon, 2010. http://tel.archives-ouvertes.fr/tel-00862072.
Full textGuilbert, Jonas. "Essai sur le concept de l'abus de droit fondamental." Electronic Thesis or Diss., Toulouse 1, 2021. https://publications.ut-capitole.fr/id/eprint/44668.
Full textCertainly, the discomfort caused by the expression “abuse of a fundamental right” is the driving force behind this research: how can one abuse a right, which is even more fundamental? In spite of the ambiguity of this expression, the abuse of rights is a positive notion in terms of fundamental rights. Envisaged in many international and regional declarations of human rights, it is particularly used by the ECHR. However, if we want to resolve certain paradoxes objectively attached to the notion, it is necessary to work on theoretical clarification: what can the subject of law really abuse in law? What does it really mean to have a right? And further, what does it mean to have a fundamental right? Based on the work of the philosopher and semiotician C.S. Peirce, as highlighted today by C. Tiercelin, this research starts from a strong ontological commitment: the necessary distinction in law between words, concepts, and things (essentially social facts). From this fundamental clarification, it will be easily seen that the expression “abuse of right” is in reality an abuse of language. However, the concept referred to by this expression has a certain usefulness andpersistent within the legal discourse. From a strictly normative point of view, the concept acts as an anti individualist iclimitation on the use of rights. By stigmatizing legally unacceptable uses, it can not only protect fundamentality as a system, but also prove to be, against all odds, the most faithful instrument to the liberalism constitutive of human rights, as a pragmatic remedy to overly general and abstract restrictions of rights. In any case, the normative work of the concept of abuse of right deconstructs the ideological representations of the legal system, which make people believe that any individual claim constitutes, without any methodical and dogmatic investigation, the exercise of a fundamental right. From a strictly cognitive point of view this time, the concept of abuse of rights can constitute a particularly fertile prism for the study of the phenomenon of fundamentality, because it invites us to delve into the heart of the process of meaning of rights from the point of view of the use made of them by the subjects of law. Thus, the meaning of fundamentality is considered beyond texts and statements, i.e. beyond language, in order to apprehend, in the light of the concept that is the subject of this research, the legally significant scope of the individual action itself: when valid use is a sign of the alleged right. The study of this significant “bottom-up” process may reveal a horizon of new knowledge about fundamental rights, and even about a legal and realistic conception of democracy
Lampron, Louis-Philippe. "L’existence d’une hiérarchie juridique favorisant la protection des convictions religieuses au sein des droits fondamentaux canadiens." Thesis, Avignon, 2010. http://www.theses.fr/2010AVIG2029/document.
Full textSince Dagenais c. Radio-Canada, rendered in 1994, the Supreme Court of Canada has never questioned the principle of “no legal hierarchy between the different Human Rights protected by the Canadian and Quebec charters. However, a careful review of Canadian jurisprudence on the protection of religious beliefs permits to detect a certain reluctance if not a "discomfort" of judicial institutions when they must identify clear boundaries beyond which the claims based on religious beliefs can not be constitutionnaly (or quasi-constitutionnaly) protected. This "judicial reluctance" being particular to provisions protecting religious convictions in Canada, it seemed possible to us that its impacts may be symptomatic of the implicit - but real - establishment a legal hierarchy between the various Human Rights protected by the Canadian and Quebec charters. Based on a theoretical framework inspired by the work of Rik Torfs, Professor in the Catholic University of Leuven in Belgium, and through a study focused on the context of labor relations, we intend to demonstrate that the current state of Canadian and Quebec law on claims based on different religious beliefs and customs underlies the application of a hierarchical model (the "trust model") which assigns to the provisions protecting individual religious beliefs a place among the highest in the same hierarchy. In doing so, we hope to contribute significantly to the theory of law by achieving three main objectives : (1) To establish and implement a method permitting to identify a material hierarchy between two sets of fundamental rights, (2) To expose the close relationship that may exist between the different national models of management of religious pluralism and the concept of material hierarchy among human rights, and (3) To establish the existence of a material hierarchy between constitutional Human rights in Canada through the demonstration of hierarchical imbalance favoring the provisions protecting religious beliefs within the broader set of constitutionnal Human Rights in Canada
Laureote, Xavier. "Le droit d'agir en justice des autorités étatiques devant les autorités judiciaires et administratives : contribution à la théorie juridique de l'État." Thesis, Paris 10, 2008. http://www.theses.fr/2008PA100111.
Full textThe existence of a notion recognising the State as a law subject in the internal legal order has been proven. Positive law gives subjective attributes to the State authorities, that is to say rights and obligations regarding other entities. Notwithstanding its generalized use in statutes, case law and doctrine, the concept of the State as subject to national law has not been extensively studied. This shortcoming is particularly noticeable concerning the situation of the State in respect to the national judges, because it contrasts with the success of the notion of the rule of law. This notion promotes subjecting public powers to the respect of law and to the control of the judge. According to a common presentation, the rule of law implies that the State is considered as a moral person whose decisions are subject to the respect of the principle of legality, just as other legal persons. This proposition deserves to be considered in the light of positive law. This study undertakes the situation of the French State as a subject of common law. It examines the situation of all State authorities with the capacity to act before administrative and common jurisdictions. The prosecutor is included in the scope of this study in order to better grasp the whole of principles and concepts that define and constitute the subjective relationship between the State and French jurisdictions. The analysis concerns the sources and the status of the right to act in justice of the State on one side, and the rules of procedures applicable to State authorities who are part of administrative and judiciary process on the other. This perspective helps to value the importance and the strength of the accountability of the State and of the limits of its assimilation, in the proceedings, to ordinary judicial persons. It also reveals the complexity of the judicial link between the State as a subject of law and the citizen as a beneficiary of fundamental rights. Consequently, the study renews the theoretical approach of the State and its legal forms such as the sovereign State
Bihannic, Kévin. "Repenser l'ordre public de proximité : d'une conception hiérarchique à une conception proportionnelle." Thesis, Paris 1, 2017. http://www.theses.fr/2017PA01D087/document.
Full textAlthough case law has not entirely ruled out the theory of the “ordre public de proximité”, it’s scope has constantly been decreased to the point that it is now impossible to question it’s fall from grace. Hence pushing for a study of it’s future existence in the general theory of privateinternational law. In spite of recurrent criticism from Doctrine sources, the “ordre public de proximité” has not become useless. A renewed interpretation of its overall functioning is needed to overcome the fear of taking over the role of the public policy exception and therefore encouraging cultural relativism.However, considering the rehabilitation of the “ordre public de proximité” should not misguide us into thinking it is flawless. When confronted to the evolution of private interational law and a possible mutation of the public policy exception, the inadaptability of this principle becomesobvious. More specifically when transiting toward a logical ranking of values as necessairy for it’s effective functioning, one may fear a lack of consideration for the foreign norm. As a consequence, the “ordre public de proximité” seems to build itself outside of the public policytheory highlighting the need to consider it’s overcoming. Redefining the theory of the so-called “effet atténué” (limited effect) could represente an effective solution on condition that this system is founded on the balance of interest. In conclusion, if the “ordre public de proximité” cannot exist as an independent mechanism, the proximity condition must remain and support the development of proportionality as the reasoning method for the application of the so-called “effet atténué”
Fabre, Benjamin. "La crise du droit d'auteur : une approche systémique." Thesis, Aix-Marseille, 2012. http://www.theses.fr/2012AIXM1048.
Full textThe copyright crisis is a well-known topic ; however, legal doctrine disputes about its causes and nature. This thesis proposes a systemic and substantive approach of copyright. The systemic analysis allows to highlight its structural and organisational features and to understand the phenomenas which are serioulsy destabilizing it. The fundamental right qualification of copyright inevitably leads to transform the way legal standards must be articulated and, even further, the way all different interests concerned by creation and exploitation of intellectual works must be balanced. This modelling reveals a set of legal standards empirical validity failure and an axiological incoherence between its substantive aims and its practical implementation : balance of interests, which justifies granting a monopoly, is broken. This crisis can be dealt with several proposals. We have to prefer those which consider copyright as an open system and which draw all the consequences of its fundamental right nature. Mainly, the limit and exceptions legal status and perimeter revaluation, and more important, the systematic use of proportionality control by the judge when the right of the author or the rights of the public are infringed, could re-establish copyright its consistency. In fine, the objet of this thesis is to advocate an approach which links and does not separate the formal and substantive aspects of copyright and, more extensively, of legal systems
Herran, Thomas. "Essai d'une théorie générale de l'entraide policière internationale." Thesis, Pau, 2012. http://www.theses.fr/2012PAUU2010.
Full textDue to the several sources and its implementation, the international mutual help between the polices tends to be a concept difficult to understand. The different ways to set up the cooperation in the different part of the world and the several evolutions known, are increasing the difficulties to understand its complexity. This study wants to show and give a clearer vision of this mutual help. Basically, there are two kinds of mutual helps: the assistance and the cooperation. The result appears after a notional study and is consolidated by the establishment of a framework. Despite a commom definition, the study of the notion reveals a duality in the international mutual help between the polices. This duality has an impact on the legal framework, as two types of frameworks are appearing: the assistance relates on the common law system and the cooperation tends to be a specific framework. Finally, it appears the international mutual helps between the polices borrows from the criminal proceedings and from the international rights their caracteristics and their influences
Latil, Arnaud. "Création et droits fondamentaux." Thesis, Lyon 3, 2011. http://www.theses.fr/2011LYO30073/document.
Full textThe legal approach to the notion of creation is vague. It is traditionally considered in the light of intellectual property rights (copyright, patent, design, etc.), but this approach is insufficient. Fundamental rights show us this. They let us distinguish between its different dimensions: creation as both a human activity (a creative act) and an object of property (a creative good). The freedom of creation protects and ensures the creative act. However, the nature of the former remains unclear. It fluctuates between falling within the freedom of expression and the freedom to conduct a business. Furthermore, the proportionality test leads to the limits of creative freedom being examined in terms of “laws of the creative type”. Fundamental rights then require us to go beyond the concept of the creative act as a message.The creative good is protected by property law. Fundamental rights, however, bring into question the French concept of a creative good by further emphasising their economic aspect. Moreover, the proportionality test means retracing the boundaries of property law by taking into account its social functions. Fundamental rights therefore blur the line between property law and unfair competition law
Sola, Guillaume. "Sportifs et droits fondamentaux." Thesis, Lyon 2, 2009. http://www.theses.fr/2009LYO22009.
Full textHow many children dreamed to become a day professional football player, a tennis player or a driver of Formula 1? How much were we in the evening of finale of the World cup 1998 behind the French Team ? Magic, social phenomenon, vector of integration … We could talk indeed for a long time about the virtues of the sport. However, the other side of medal is much less happy, safe for the jurist. Indeed, we attend these last years a process of consideration of the sport by the state law. The sport cannot stay any more outside the state law. This penetration of the law has necessarily incidences on the fundamental rights recognized by the sportsmen. Nevertheless it seems that the doctrine that is little interested in the sportsman, " who is a citizen as the others with inalienable rights ".If the principle according to which the sportsman arranges the same fundamental rights as every citizen seems widely admitted, it is advisable not to remain impervious to the demand of a sports exception. Indeed, the sports movement lives as an intervention the apprehension of the sport by the state law. The opposition between the European Commission and the authorities of the football, concerning the system of transfers, is a recent proof of this hesitation. So a sports specificity would prevent the normal application of the legal rule. What is it from the point of view of the fundamental rights of the sportsman? Is there a sports exception in fundamental rights so that taking back an expression of Hauriou, we could consider the sportsmen as " special citizens "? Several problems settle. First of all, it will be advisable to wonder about the existence of a sports specificity in the recognition of rights for the sportsman. Indeed, the question is the one to know if the sportsman is a holder of the same rights as every citizen. Once the rights of the sportsman were determined, the question of the effectiveness of its rights will settle. Is not there a sports peculiarity in the exercise of the fundamental rights, so that if the sportsman benefits as in principle from the same rights as every citizen, he could not exercise them in the same way? So the effectiveness of the rights of the sportsman would be eased.The operated of a specificity of application in fundamental rights reveals a category-specific protection which breaks with the universalism traditionally attached to human rights. The search for the effectiveness of the rights of the sportsmen is nevertheless relevant. But it leads the judge to recognize the fundamental character of a right, independently of the standard which supports it according to the importance which it takes on in the special case. The initiative of the new actor of the sports scene shows a questioning of the formal meaning of a word of the notion of fundamentality for the benefit of a material meaning of a word. So as to recognize the existence of a right by the formally fundamental sport. Because " it is more interesting to wonder about the existence of the same right, at the level where are normally recognized the fundamental rights, that is at the constitutional level ". Even if no text with supreme value dedicates such a right, " You should not nevertheless be held in it disappointing report ". Because its emergence is perceptible. The interest is considerable because the law for the sport recovers the quasi-totality of the nomenclature of human rights. Its stake in work becomes necessary for the consideration of the sports specificity
Bornhauser-Mitrani, Laurence. "Droits fondamentaux et vie économique." Paris 2, 1997. http://www.theses.fr/1997PA020055.
Full textSoufflard, Gauthier. "Réalité augmentée et droits fondamentaux." Master's thesis, Université Laval, 2018. http://hdl.handle.net/20.500.11794/29809.
Full textMendes, Constante Jorge. "Les droits fondamentaux du justiciable." Aix-Marseille 3, 2002. http://www.theses.fr/2002AIX32055.
Full textThe basic rights of justiciable determine today the substantial axis around of which the Right of justice is articulated. It is towards the respect of the basic right to the judge and the basic right to the respect of the rights of the defense which the objective rules of jurisdictional and procedural organization must be durably turned. The French and Portuguese constitutional systems conceal a strong potential specialist in comparative literature, and in spite of the differences, the decisions of the convergent court constitutional towards the valorization of the basic rights of the justiciable one. The Community and European judges take part in the rooting of theses rights which to the bottom belong into clean neither to the constitutional law, nor of the European right, but of European pools. The existence of the rights of justiciable to the row to basic rights protected by the constitutional and European law results essentially from a jurisprudential development process. It is then by probing abundant jurisprudences of the constitutional and supranational judges, that it is possible to reveal the common existence of the basic rights of justiciable in Europe (First part). The study of the contents of the basic rights of justiciable allows evincer confusions which remain numerous between the substantial rights of justiciable and the jurisdictional or processual rules the new requirement of effectivity, which remains associated with these basic rights of the justiciable one, gives them contents concrete and led to wonder on the one hand about the implications which can result it for the State in terms from obligations to achieve, and on the other hand, to measure their radiation in the legal order interns of the two studied countrie. Ultimately, it is a question of seeking the consequences of their common existence, to try to account fot the efficiency of the basic rights of the justiciable. (Second left). The application of these two basic rights can attest qualitative evolution of the modern concept of State because both are the sign of a reinforced democracy, irrigated by justice
Ballot, Élodie. "Etude critique des droits fondamentaux." Thesis, Tours, 2012. http://www.theses.fr/2012TOUR1001.
Full textFundamental rights aim to protect and develop the human person. They provoke passion and controversy. Supported by international and European texts but also stemming from the German term “Grundrechte”, circulated in public law as well as in private law, they are subject to different analyses, especially in public law, in order to determine their meaning, their functions and their system. It seemed that the research conducted in doctrine does not enable the comprehension of the concept of “fundamental right” for certain. Indeed, a single concept of the notion does not exist, fundamental rights are seen as an imperceptible legal category. Due to the lack of a clear definition, it is difficult to set them apart from notions of “Human Rights” or “Civil Liberties”. Their legal nature is equally uncertain. For these reasons, they constitute a heterogeneous unity which is difficult to define and unfortunately international law and European law, though rich in peremptory assertions, does not provide a satisfactory perspective. The implementation of fundamental rights is equally as imperfect. On the one hand, they are subject to an outbidding characterised by a normative proliferation in domestic law as well as in international law. This is hardly controlled and leads to inevitable conflicts which, in the absence of a clearly established hierarchy, are often relentless. On the other hand, the techniques of protecting fundamental rights prove to be insufficient in particular, due to their manipulation by different judges. The judicial solutions are henceforth unpredictable and contribute to the phenomenon of judicial insecurity
Arroyo, Julie. "La renonciation aux droits fondamentaux." Thesis, Grenoble, 2014. http://www.theses.fr/2014GREND010.
Full textRenouncement 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
Benessiano, William. "Légalité pénale et droits fondamentaux." Aix-Marseille 3, 2008. http://www.theses.fr/2008AIX32019.
Full textThe principle of legality (nullum crimen, nulla poena sine lege) which is a traditional tool to fight against judicial arbitrary (arbitrium judicis), is nowadays hotly defended by different judges. The latter are acting thus in the name of the fundamental rights, through the intervention of a quality control of the rule, its interpretation, its individualisation and the respect of an equitable procedure. Portalis wanted “precise laws and no case law”. However, when the legislator does not give enough precisions, increase the number of offences or elude the competence of the criminal judge, only the intervention of the judge and/or the application of the constitutional criminal law principles are able to fulfill this mission, the modern paradigm of the rule of law. The origin of this control is due to the bodies instituted by the European convention on human rights which bear as a constant aim the efficacity of the rights and liberties protected. Undeniably inspired, the Constitutional Council and the judge have themselves required that the criminal law should fulfill a certain number of conditions. Nevertheless, the attitude of the judge bears a main risk. This could be a way for him to extend his competence too far by sanctionning systematically the rule of the lawmaker and thus to sweep away the separation of powers which has already suffered from the creation of the administrative independant authorities and from the administrative repression (which is older), substitute for a “para-criminal” law. These analysis of the decline of the legality principle have become some commonplace (the complexity of law and the diversification of its sources are the main causes of this setback) which do not hurt the rule of law because the gist and the justification of the principle are ensured anyway. The influences due to the internationalisation and to the specialisation of law have ruined the principle as it was seen originally, with the law as a unique source of criminal law. However, this principle shows a great capacity to adapt (“resilency”) and to integrate the new supranational juridical order, in particular through the right to a fair trial wich allows a certain obliteration of the summa divisio. The latter leads the Constitutional Council to materialise the changes of the principle of legality by creating a constitutional objective according to which the law must be intelligible and open to everyone, and by dedicating the principle of clarity of law, a sort of ersatz of criminal legality. Finally, it is through the classical tools the ordinary judge has at his disposal (the individualisation of the sentence and the interpretation of the law) that it becomes possible for him to instill a touch of “correcting equity” which has become necessary considering the incapacity of the traditional egality to do so. In other words, just as a democracy does not express itself only through the direct universal suffrage, the fulfilment of the rule of law is to be considered more through the efficiency of the juridictional respect of the fundamental rights than through the traditional conception of the principle of legality
Todorova, Marieta. "L'interdiction d'abus des droits fondamentaux." Thesis, Montpellier 1, 2011. http://www.theses.fr/2011MON10009.
Full textThe concept of the abuse of the right is spread in most disciplines. This prohibition is, not only, present in several legal systems, but it can also be found in the principal instruments of the protection of human rights and fundamental freedoms. Nevertheless the specificity of this branch of the law and the particular nature of the concept of the abuse of right impose the difficult issue of the compatibility of every clause prohibiting the abuse of right and the philosophy of the fundamental rights. Therefore, this interrogation requires raising the challenge of its identification in the fundamental rights area, and the challenge of its conceptualization.The identification of the abuse of the fundamental rights is problematic, since that, we are facing a notion with undetermined content revealing its plasticity and its malleability. These characteristics have the effect of integrating, in the positive law, a controversial concept, unstable and at the same time mobile and confused, they also impose the determination of the elements that contribute to the definition and the clarification of the application field of the prohibition of the abuse of the fundamental rights. The abuse of the right conceptualization can be built if we head from the basic role, that it is managed to assume in the fundamental rights area. The prohibition of abuse of fundamental rights appears to be an important element of fundamental rights legal system, whose custom has to remain exceptional, allowing not only to regulate the exercise of the individual rights but also to defend the essential values in their protection process, and in particular those inherent to every democratic society. The prohibition of abuse of right ensures the coherence and the fullness of fundamental rights legal system
Todorova, Marieta. "L'interdiction d'abus des droits fondamentaux." Electronic Thesis or Diss., Montpellier 1, 2011. http://www.theses.fr/2011MON10009.
Full textThe concept of the abuse of the right is spread in most disciplines. This prohibition is, not only, present in several legal systems, but it can also be found in the principal instruments of the protection of human rights and fundamental freedoms. Nevertheless the specificity of this branch of the law and the particular nature of the concept of the abuse of right impose the difficult issue of the compatibility of every clause prohibiting the abuse of right and the philosophy of the fundamental rights. Therefore, this interrogation requires raising the challenge of its identification in the fundamental rights area, and the challenge of its conceptualization.The identification of the abuse of the fundamental rights is problematic, since that, we are facing a notion with undetermined content revealing its plasticity and its malleability. These characteristics have the effect of integrating, in the positive law, a controversial concept, unstable and at the same time mobile and confused, they also impose the determination of the elements that contribute to the definition and the clarification of the application field of the prohibition of the abuse of the fundamental rights. The abuse of the right conceptualization can be built if we head from the basic role, that it is managed to assume in the fundamental rights area. The prohibition of abuse of fundamental rights appears to be an important element of fundamental rights legal system, whose custom has to remain exceptional, allowing not only to regulate the exercise of the individual rights but also to defend the essential values in their protection process, and in particular those inherent to every democratic society. The prohibition of abuse of right ensures the coherence and the fullness of fundamental rights legal system
Defix, Sébastien. "Un concept de droits fondamentaux contribution a la determination d'un droit constitutionnel europeen des droits fondamentaux." Clermont-Ferrand 1, 1999. http://www.theses.fr/1999CLF10204.
Full textGirard, Bénédicte. "Responsabilité civile extracontractuelle et droits fondamentaux." Thesis, Paris 1, 2013. http://www.theses.fr/2013PA010311.
Full textThis thesis aims at investing the growing influence of fundamental rights on French tort law through questioning the reasons for it and the resulting consequences. It aims at showing that the resort to fundamental rights focuses on prioritizing the different issues at stake in sui15 on the ground of tortious liability. French tort law is characterized by very general rules, which submit the different categories of victims and perpetrators of damage to a uniform treatment without distinguishing the nature of the interests at stake. In the absence of legislative reform, in the eyes of claiman15 and judges, fundamental rights appear as quick and effective means of prioritizing the interes15 at stake, in so far as they protect interes15 perceived as superior. The invocation of a fundamental right is resorted to specifically to challenge an existing rule in favour of a solution that better protects the interest guaranteed by the fundamental right in question. In other cases, it further justifies an established solution through openly taking into account the interest that requires such increased protection. Even though it seems legitimate to take victims' and damage-perpetrators' interests into greater account, the resort to fundamental rights to achieve such an objective however has limitations. Fundamental rights serve as arguments to protect such interests, but do not provide any indication of the precise manner in which this protection must be guaranteed. In this respect, the present study offers sorne avenues of reflection with a view to improving the taking into account of the interests at stake in tort suits. Moreover, the fact that fundamental rights are increasing invoked is not neutral in tort law, because it results in in-depth changes in judges' manner of reasoning. Indeed the application and construction of ordinary tort law rules are now bound to respect fundamental rights, whose number keeps on increasing and which are stated in very general terms. The settlement of disputes then depends on how judges construe and reconcile the often contradictory issues arising from victims' fundamental rights and those of damage perpetrators. The syllogistic approch to legal rules in thus challenged to benefit of a method based on the balance of interests, which implies a deliberative approach to adjudication. Such a develoment is bound to create legal uncertainty. This thesis therefore aims at reviewing the resort to fundamental rights, thus distinguishing between cases in which the invocation of a fundamental right is necessary and dserves to be encouraged, and those in whixh it is useless or harmful and should therefore be avoided
Meyrat, Isabelle. "Droits fondamentaux et droit du travail /." Villeneuve d'Ascq : Presses Univ. du Septentrion, 2001. http://www.gbv.de/dms/sbb-berlin/339658495.pdf.
Full textMaetz, Olivier. "Les droits fondamentaux des personnes publiques." Strasbourg, 2010. http://www.theses.fr/2010STRA4037.
Full textThe lacking connection between fundamentality and dignity has led to a seemingly paradoxical situation where public persons are granted a protection based on rights that were destilled to limit their actions. Indeed, fundamental rights protect a rnargin of autonorny which is not derived fi·orn the dignity of the human being but fTom legal personality. Public persons have thus called upon French jurisdictions as weil as European and Community COUlts ta protect their fundamental rights. The way these cases have been handled reveals an ambivalent conception of public legal personality which shapes the legal status offundamental rights. The specificities of public legal persona lit y find a natural extension in the recognition and protection of fundamental rights
Ahmadi, Djalil. "Les droits fondamentaux des responsables politiques." Thesis, Pau, 2020. http://www.theses.fr/2020PAUU2078.
Full textThe study of policy makers’ fundamental rights is at the intersection of several issues shared by modern democracies, i.e. the democratic legitimacy of the political function and the preservation of its holder’s fundamental rights. The cornerstone of this work consists in analyzing how coherently law has transcripted these two imperatives at a time when the gap between policy makers and public opinion has never been so big. In this perspective, this research is centered around three main themes. The first one underlines the rights and freedoms whose implementation is specific to every political function and which reveal the policy maker as a singular citizen. The second one highlights the influence of some political functions on procedural fundamental rights as the policy maker enjoys a functional immunity and a jurisdictional privilege that make him an unusual litigant. The third one shows the impact of the use -often disproportionate- of public interest by the judge and the lawmaker on policy makers’ fundamental rights. Thus, it reveals the opportunity to reconsider some aspects of the legal system to promote a more adapted protection of policy makers’ fundamental rights through the development of objective criteria of assessment and the exercise of a proportionality test able to both protect the political function and preserve the fundamental rights of its holder
Levy-Amsallem, Judith. "Droit du travail et droits fondamentaux." Toulouse 1, 2006. http://www.theses.fr/2006TOU10022.
Full textAt the very beginning of the 21st century, it seems almost impossible to deal with a legal issue without referring to "fundamental rights" as if such a reference was a "guaranty of legitimacy". Nevertheless, general studies relating to the place and the meaning of "fundamental rights" in the legal system are still rather unusual. Whereas the matter of "law constitutionalization" is regulary studied, the issue of "theorization of fundamental rights" is abandoned, especially by private law. To take part in the enrichment of fundamental rights knowledge, which is essential to a good law enforcement, this study aims at emphasizing the very strong link between fundamental rights and employment law. Employment law conveys a renewed conception of law, which can be called "social conception of law". Expressing the necessity of renforcing the human rights in concrete terms, the social conception of law has legitimated the emergence of fundamental rights. On the one hand, employment law enrichies the triple definition : formal, organic, and material of the fundamental rights and strengthens their legal theory. On the other hand, the fundamental rights are behind not only the development but also the transformation of employment law. They irrigate the law of working relation as well. The data revealed by the study of the interaction between employment law and fundamental rights allow to confirm the existence of a genuine juridical independent category, and beyond, lead to the emergence of a law of fundamental rights
Meyrat, Isabelle. "Droits fondamentaux et droit du travail." Paris 10, 1998. http://www.theses.fr/1998PA100093.
Full textMarcilloux-Giummarra, Sandrine. "Les droits fondamentaux et le sport." Aix-Marseille 3, 2009. http://www.theses.fr/2009AIX32083.
Full textFundamental rights, from a sports point of view raise several issues. The first is related to their application within the sport movement and the second is whether the pratice of sport is a fundamental right. The meeting between the fundamental rights and sport is, in certain way, announced by the principles ruling the whole sports movement, national as well as international. The Olympic Charter says, that the pratice of sport is a human right, which is performed safe from any discrimination in order to preserve human dignity. In Spain and Portugal, countries with newer constitutions than ours, the pratice of sport is constitutionally guaranteed. This puts it in charge of the State. In international law, various measures of same normative value implicitly ensure the effectivity of sport, such as the right to education, the right to work and the right to leisure. In addition, the institutional organization of physical and sports activities is primarily based on freedom of association and the inherent principle to competitive sport is based on the equality of the participants. Like most rights, the pratice of sport is not absolute. It is exercised in accordance with the right for the protection of health and is subject to the free administration of territorial communities owners of sports facilities. Finally, we can notice that persons under private law which have been entrusted with the managament of one or more sports sometimes have a personal design protection of some fundamental rights inherent either to the nature of sporting activity or to the prerogatives which they were entrusted with in order to organized sport. The ordinary judge has thus mission to provide the litigants with the effectivity of their fundamental rights in the field of sport by controlling the activity and the actions of the sports movement, as regards sports organizations or practitioners
Blondio, Mondoloni Virginie. "Finances publiques et droits fondamentaux : essai sur les relations entre les finances publiques et les droits fondamentaux." Thesis, Aix-Marseille, 2014. http://www.theses.fr/2014AIXM1098/document.
Full textSubject of an apparent antilogy wich, due to the present Financial and economic crisisproves his immanence. The major interrogation turned to way how is realized from the point of vew of fundamental rights this double exigency due to the fact that this rights instigate the intervention of the administration of a country. The fundamental rights effectiveness requires a public financing holding legitimacy of their Framework through fundamental rights. The european crisis and the respect of Financial rules do damage tothis balance of relation because the lack of public financing has "ipso facto" an impact concerning the fundamental rights protection, and incorporated in every possible way according to jurisdiction
Ribes, Didier. "L'état protecteur des droits fondamentaux : recherche en droit comparé sur les effets des droits fondamentaux entre personnes privées." Aix-Marseille 3, 2005. http://www.theses.fr/2005AIX32043.
Full textAre fundamental rights a source of obligations for private parties? If so, a dogma can be questioned, i. E. The definition of fundamental rights as subjective rights of defence against the State. The normativist theory of law leads us to offer a definition of fundamental rights that implies, apart from a positive law restriction, an applicability of these rights to private parties. Such applicability is controversial as it may endanger the private's will autonomy and the private law's purpose. Different theories have been developed with the aim of defending an immediate applicability to private parties or a mediation through state norms of private law. Concurrent, but in reality complementary, these modalities allow the State to fulfil its mandate of protection. This mandate, derived from the guarantee of rights towards public law remedies, ensures its fulfilment in the sphere of private relationships
Ueno, Mamiko. "Justice, constitution et droits fondamentaux au Japon /." LGDJ : Paris, 2010. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=018973696&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
Full textDanova, Maria. "La dimension objective des droits fondamentaux européens." Thesis, Strasbourg, 2015. http://www.theses.fr/2015STRAA003.
Full textThe objective dimension is one of the main theories of the interpretation of fundamental rights in Germany. Although relatively unknown outside its national context, it exerts an influence at a European level, especially in case-law in the European Court of Human Rights, without being regarded as such. The present study aims to analyze this approach of rights at a European scale through its main characteristics drawn from German law, as well as to highlight the influence of the latter on European law. The objective dimension appears to be a teleological and total interpretation that establishes the protection of rights on certain political and moral values, and ensures their radiating effect within but also through legal systems. If it is a breakthrough in the elaboration of the theory of rights, it also carries the risk of weakening these same rights in their subjective function which is to protect personal freedom
Bonjour Sophie, Madame Danova a déposé un nouveau contrat ce 10/09/2015. Le rôle FICH est à modifier. Merci d'avance Suzanne
Déal, Emilie. "La garantie juridictionnelle des droits fondamentaux communautaires." Aix-Marseille 3, 2006. https://tel.archives-ouvertes.fr/tel-00271970.
Full textThe judicial guarantee of fundamental rights is based on ambiguity: the Community of law is not correctly apprehended. Specially, fundamental rights do not seem to be an attribute of it. Consequently, the mission of the judge is badly understood: if the recognition of the general principles of Community law were legitimate, the judge did not have any obligation to identify fundamental rights. Nevertheless, it has acquired the legitimacy to do so. Concerned about respecting its mission even enriched, it cannot take the place of EU “constitutive power” to compensate for its shortcomings. However the Court was not at fault to balance the guarantee of fundamental rights. On the one hand, it has adopted a constructive behaviour, as our statistical trends confirm. On the other hand, the Court was able to suggest constructive perspectives, also contained in the postponed European Constitution treaty project. For the time being, some evolutions remain possible
Tinière, Romain Jacques André. "L'office du juge communautaire des droits fondamentaux." Montpellier 1, 2006. http://www.theses.fr/2006MON10039.
Full textUeno, Mamiko. "Constitution, justice et droits fondamentaux au Japon." Aix-Marseille 3, 2006. http://www.theses.fr/2006AIX32023.
Full textAst, Frédérique. "Les droits sociaux fondamentaux dans l'Union européenne." Paris 2, 2002. http://www.theses.fr/2002PA020059.
Full textGautier, Jean-Louis. "Hospitalisation psychiatrique sous contrainte et droits fondamentaux." Thesis, Aix-Marseille 3, 2011. http://www.theses.fr/2011AIX32034.
Full textThe old law on insane people has often been criticized but none of the numerous attempts of reform, that it has met throughout its history, has prevented the outstanding move of cares towards more liberty, notably through sectorization. The lack of adaptation of the monarchist law made the legislator act in 1990, but the action was very relative as 90-527 law only rephrased, with some updates, the means to constrain to a treatment abiding by public policy. But, the new law, intended for the improvement of liberty and the protection of hospitalized insane persons, had paradoxical results: an extension and a reinforcement of psychiatric constraint, which made reappear the criticisms of jurisdictional dualism, which psychiatric hospitalization is subjected to. The court relentlessly reaffirmed its attachment to the principle of separation of administrative and judiciary authorities, while it was rejecting the legal argument’s unification of the psychiatric hospitalization without agreement in favor of the judicial judge. The High Court, with an adjudication dated from February 17th, 1997, made a rationalization of disagreement’s skills which allowed the jurisdictional plan to reveal its efficiency : administration, nowadays, has to make sure the hospitalization is respectful of procedures, it would be compulsorily sanctioned in case of a breach of the rules (First part). Nevertheless, hospitalized persons without acceptance should worry about the high-level of guarantee of their rights. Since 1997, an imminent reform of this law has been expected. Numerous reports and studies have led to sanitarian or security order proposals, which sparked concern. The measures about the statement of penal irresponsibility due to mental disorder, and tackled in 2008-174 law, kept feeding these concerns making the situation of persons forced to psychiatric cares worse. The bill submitted to the President of the national assembly on May 5th, 2010, confirmed this evolution. The text pending the parliamentary institution has a sanitarian aim, but the individual right to health protection would justify a constraint that public order can not establish ; the necessity of psychiatric cares would not only be based on the external manifestation of the disease as an aspect of civilian life. Moreover, even if the constitutional Council’s requirements, defined during a major questioning of the constitutionality of the maintenance of constrained hospitalization, are an enhancement, the increased presence of a judicial judge during the procedure would not ensure better guarantee as long as the new disposals operate a deep transformation of judges' duties, notably if they are associated with the decision of constrained cares. Against all expectations, the sanitarian aspect of the measure, when it turns to be an end in itself and is not dependent on public order, is dwindling liberties (Second part)
Tinière, Romain. "L'office du juge communautaire des droits fondamentaux /." Bruxelles : Bruylant, 2008. http://catalogue.bnf.fr/ark:/12148/cb414181748.
Full textSiew-Guillemin, Anne Sophie. "La famille à l'épreuve des droits fondamentaux." Thesis, Université Côte d'Azur (ComUE), 2017. http://www.theses.fr/2017AZUR0033/document.
Full textOnce lineal, patriarchal and inegalitarian, the family has become egalitarian, nuclear and pluralist. Analysis shows that the impetus of fundamental rights has been decisive in this process. The principles of liberty, equality and non discrimination prevailing now have created unprecedented upheavals in the institution of the family. Traditionally influenced by a restrictive public tendance, family law has been considerably liberalized, to the point of appearing in certain respects as the depository of individual wishes. This decline of the regulating function raises questions as to the evolution of law itself and of it's object, the family. In this respect, fundemental rights present problems, both technical and political. However, fundamental rights may also be regarded as tools to be used for the recomposition of the institution of the family and of it's protection
Chapelle, Cédric. "L'expertise civile à l'épreuve des droits fondamentaux." Thesis, Université Côte d'Azur (ComUE), 2018. http://www.theses.fr/2018AZUR0033/document.
Full textLaw is irrigated by fundamental rights in each of its branches. As a preferred instrument of civil procedure, the expertise is concerned by this phenomenon. Like for the trial, expertise and fundamental rights are intrinsic. However, the links between these two concepts can be described as complex : indeed, they suggest a collaboration and a confrontation. Thus, fundamental rights represent an ideal approach to reveal the potentials and the deficiencies of the expertise, to improve it and to participate in its renewal. The evolution of the notion of expertise as well as the expansion of fundamental rights are creating unprecedented issues that the law has to consider. Alongside the traditional judicial expertise, whose submission to the principle of fairness is no longer disputed, the trial welcomes non-judicial expertises whose regimes are still to be defined in order to comply with fundamental rights. This change in civil expertise is due to fundamental rights, whether procedural or subjective. This thesis does not only intend to put the various forms of civil expertise in opposition, it also plans to establish them as reciprocal models. This thesis also reveals the different functions of fundamental rights in the development of civil expertise. On the one hand, it is their protective role that has been put forward. This means that fundamental rights must be respected during the conduct of a measure of expertise, judicial and non-judicial. A measure of instruction can be qualified as effective only in this case. On the other hand, it is the creative function of fundamental rights that has been revealed in this study. Issues relating to the rights to judicial expertise and non-judicial expertise is the result of an extension of the philosophy of specific fundamental rights. This creative role certainly contributes to the transformations of civil expertise
Wang, Zhenjian. "Groupes projectifs et arrangements de droites." Thesis, Université Côte d'Azur (ComUE), 2017. http://www.theses.fr/2017AZUR4034/document.
Full textThe objective of this thesis is to investigate various questions about projective groups and line arrangements in the projective plane. A projective group is a group which is isomorphic to the fundamental group of a smooth complex projective variety. To study projective groups, sophisticated techniques in algebraic topology and algebraic geometry have been developed in the passed decades, for instance, the theory of cohomology jump loci, together with Hodge theory, has been proven a powerful tool. Line arrangements in the projective plane are of special interest in the study of projective groups. Indeed, there are many open questions related to projective groups, and the theory of hyperplane arrangements, and in particular that of line arrangements, which is quite an active area of research, may provide insights for these problems. Furthermore, problems concerning the fundamental groups of the complements of hyperplane arrangements can be reduced to the case of line arrangements, due to the celebrated Zariski theorem of Lefschetz type. Very often, in the study of projective groups or quasi-projective groups, one usually considers line arrangements first to get some intuitive ideas. In this thesis, we also prove some theorems that are of independent interest and can be used elsewhere, for instance, we prove properties concerning morphisms from products of projective spaces in Chapter 4, we show that some morphisms have generic connected fibers in Chapter 5 and we give criteria for a projective surface to be of general type in Chapter 7
Pélissier, Patrick. "La garantie des droits fondamentaux en matière pénale en Haiti." Thesis, Toulouse 1, 2018. http://www.theses.fr/2018TOU10033/document.
Full textFundamental rights are confronted with an obsolete legal system and judicial mechanisms that are not appropriate either for their effectiveness or efficiency in Haiti. A set of cultural, historical and other obstacles stemming from legal practice fails the development of the criteria of judiciary independence and guarantees of procedural rights. The lack of a hierarchy of applied norms and the conservatism of the system's actors make it difficult to accept conventional fundamental rights and their influence in judicial decisions
Caumes, Clémentine. "L'interprétation du contrat au regard des droits fondamentaux." Phd thesis, Université d'Avignon, 2010. http://tel.archives-ouvertes.fr/tel-00543319.
Full textTremblay, Nathalie. "La conception des droits fondamentaux : discours et pratiques." Thesis, McGill University, 2010. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=86526.
Full textThrough an investigation of pertinent UN archives, this research asserts that the drafting of human rights conventions involves negotiations between states that belong to different forms of civilization worldwide, a stance that I share with the scholar Susan Waltz. By analyzing the passive role that Morocco played in the construction of the Convention against Torture, my research expands on previous scholarship. Through an investigation of Moroccan colonial and post-colonial histories, and Moroccan carceral literature, this research opposes artificial binaries such as positing cultural imperialism against political delegitimization of human rights. Although many scholars, including Joseph Massad and Abdullahi An-Naïm, maintain that human rights are a byproduct of colonialism and imperialism, the analysis of the role that Morocco played in the drafting of the Convention against Torture demonstrates that human rights are an active discipline, and not simply an artifact of colonialism or imperialism.
En analysant le rôle que l'État du Maroc a joué dans le processus de rédactionde la Convention contre la torture et autres peines ou traitements cruels inhumains oudégradants, cette recherche examine la validité des thèses qui sont véhiculées entreautres par l'historien Joseph Massad et le juriste Abdullahi An-Naïm, et quiconsidèrent les droits fondamentaux comme la suite logique de la mission civilisatricecolonialiste.
Ce faisant, l'investigation des archives des Nations Unies portant sur larédaction de la Convention contre la torture rejoint les travaux de Susan Waltz : lespetits États sont présents dans le processus d'élaboration des droits universels aumême titre que les États puissants. Néanmoins, en analysant le rôle limité que l'Étatdu Maroc a joué dans ce processus, cette recherche va au-delà de ces travaux. Eneffet, l'examen de la littérature carcérale et de l'histoire coloniale et postcoloniale duMaroc montre que loin d'être un indicateur d'une soi-disant résistance à un ordreinternational colonialiste, le rôle joué par l'État du Maroc dissimule en fait des enjeuxpolitiques internes : l'élite dirigeante a recours à la torture en tant que mode degouvernance. Or, loin de condamner cette élite, dépendamment de leurs intérêtsgéopolitiques, les États puissants contribuent, directement ou indirectement, à lapratique systématique de la torture au Maroc. Par conséquent, l'ordre international nepoursuit pas la production des droits fondamentaux, et encore moins leuruniversalisation.
Racho, Tania. "Le système européen de protection des droits fondamentaux." Thesis, Paris 2, 2018. http://www.theses.fr/2018PA020042/document.
Full textThe relationship between the two european legal order, the European Union and the Council of Europe, and national legal orders is analysed through a systemic vision, on the specific field of protection of Fundamental rights. Their relation has become so intense that it is hard to organise a study about them. That is why the systemic approach helps consider those relations as a whole. The first step, that shifts the interaction between the legal orders mentioned into a system is the presumption of equivalent protection. Follows the discovery of the rules of the system, that are also an effect of this system. More precisly, the rules are the principle of subsidiarity, proportionality and legal certainty. It appears that there is no need for the European Union to acceed to the European Convention of Human Rights, even if it would make the legal relation easier. However, it could be useful for the effectiveness of Fundamental Rights to deepen the substantial harmonisation between the european legal orders through the identification by the judges of european autonomous concept and common positive human rights obligations
He, Linxin. "Droits sociaux fondamentaux et Droit de l’Union européenne." Thesis, Paris 1, 2017. http://www.theses.fr/2017PA01D028/document.
Full textIn the present storms of economic, immigration and nationalist crises, it seems that the strengthening of the EU depends more than ever on its commitment to democracy, rule of law, respect for human dignity and its social dimension. If it is no longer doubtful that the EU is founded by these principles through its primary law, their signification – or more exactly their implementation – is still disturbed by the contradictions in the practices of European institutions. The implementation of fundamental social rights is one of the major challenges in this situation. Indeed, “Europe will be social or there shall be no Europe”. Although these rights are proclaimed by EU law and other legal systems in Europe and around the world, they are still treated as rights of a secondary zone, in contrast with civil and political rights. In order to study this contrast, my thesis proposes a theoretical and methodological approach. By using a “concretistic” method, this thesis would argue that these rights cannot be reduced to political declarations. On the contrary, they have the mission to structure EU law, since they not only vest individuals with rights, but also constitute an objective system of values which determines the development of EU law
Lobier, Vanessa. "La protection équivalente des droits fondamentaux en Europe." Thesis, Université Grenoble Alpes (ComUE), 2016. http://www.theses.fr/2016GREAD009.
Full textThe multiplication of legal systems in the field of the protection of fundamental rights leads to reconsider the classical theories of systemic relationships. New concepts intend to replace the former ones, heterarchy tries to substitute the idea of hierarchy, network replaces gradually the pyramidal structure. The equivalent protection of fundamental rights enters in this movement. Equivalent protection is a jurisprudential mechanism settled in the purpose of conciliating the relationships between the different legal systems of fundamental rights’ protection in Europe. This conciliation is allowed if there is a certain convergence in the level of protection of these rights. From the Solange II case of the German constitutional court in 1986, passing by the Bosphorus case of the European court of human rights in 2005, to Arcelor case of the French supreme administrative judge, the solution based on equivalent protection exists in several cases with different results. But the flexibility induced by the jurisprudential nature of equivalent protection can lead to a certain form of instrumentalization. As a result, if the equivalent protection is enable to establish the connection between the different legal systems of protection of fundamental rights, it still cannot be regarded as a true mechanism of legal systems articulation
Capitant, David. "Les effets juridiques des droits fondamentaux en Allemagne." Paris 1, 1996. http://www.theses.fr/1996PA010307.
Full textThe german judges and jurisprudence distinguish several effects, or functions, of fundamental rights. Instead of distinguishing between subjective effect and objectives effects, as German jurisprudence usualy does, it is fitting to distinguish between, on one hand, a defensive effect (abwehrfunktion) of these rights, which protects a sphere of liberty, inherent in each individual, and which obliges the public power to abstain from every interference (eingriff) in the field protected by each fundamental right, and, on the other hand, positive effects of fundamental rights, recently evolved, which oblige the public power to adopt mesures for promoting and protecting the exercise of these rights. The different positive rights : radiating effect (ausstrahlungswirkung), horizontal effect (drittwirkung), obligation of protection (schutzpflicht), right to allowances (leistungsrecht), obligation of putting into shape (ausgestaltungpflicht), guarantees in matter of organisation and procedure (organisations- und verfahrensgarantien), institutional guarantees, have to be classified. So it is possible to distinguish the positive effects that are characterized by the aim of the action which is requested of the public power : these are the obligation of putting into shape and the obligation of protection, and the positive effects that are characterized by the means that are used : these are the guarantees in matter of organisation and procedure and the rights to allowances. The other effects evolved by the german judges and jurisprudence find a place in these four positive effects from which they are only particular cases
Oyie, Ndzana Iréné. "L'indisponibilité des droits fondamentaux attachés à la personne." Bordeaux 4, 2001. http://www.theses.fr/2001BOR40024.
Full textFrench family law is undergoing a complete mutation. This thesis tries to study one of his basic principle : the unavailability of fundamantal rights in french family law. The unavailability means that a member of the family, can not give up his fundamental rights. He can not sell one of his rights. He cannot recognize, for instance, that somebody else is the father of his son, without being allowed by the law. The princi le is here applied to fundamental rights, following from family relationships. .