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Wasenda, N'Songo Corneille. "Le droit pénal congolais confronté aux exigences constitutionnelles". Thesis, Paris 1, 2019. http://www.theses.fr/2019PA01D046.
Pełny tekst źródłaWhereas in other places the link between constitutional law and criminal law have been accepted as the basis of criminal law on the one hand, and the major questions of repressive law have played the role of a catalyst for the constitutionalisation of criminal law the state and the emergence of human rights on the other hand, in the Democratic Republic of Congo, however, the issue has rarely been treated systematically by researchers. Would the constitionalization of criminal law be a neglected subject ? The present thesis had the ambition to take up the challenge by making a cross reading and transversal of the various constitutions which ruled the country since the Basic law of 1960 relating to the structures of Congo, until the current Constitution of February 18. 2006. In this quest, it was necessary to avoid the trap of compartmentalization of legal disciplines by opting rather for their interdisciplinarity. Originnaly designed to combat the slave trade and protect the trade to the signatory states of the Berlin Act on the territory forming the Congo Basin, the criminal law has long kept this figure of a summary work, ignoring the importance constitutional issues on criminal policy. The observation was made during the developments of the first part devoted to the lack of respect for constitional requirementsin the construction of the repressive mechanism both in its foudations and its philosophical orientations. The changes that took place after the colonial period did not change the situation. Rather, they have created a repressive regime that focuses on protecting political institutions and their leaders, ignoring constitutional guarentees and respect for the fundamental rights of the human person. The democratic changes introduced by the Costitution of 18 february 2006 augured a new ideological framework in the organization of society. It jhas introduced new forms of social control and regulation, which are naturally part of a new criminal law. The latter must comply with certain ethical conditions in the determination and hierarchy of social values on the one hand, and one the other hand, in the protection of the social group with particular attention to vulnerable people and, finalty, it must have a value both for ordinary citizens and for the various categories of offenders, including a range of appropriate. The examination of all these questions has demonstrated in the second part of the thesis that there are limits to the respect constitutional requirements, because of the lack of adaptability of a constitutional review of penal norms and especially because of the insufficiency of criminal protection of the Constitution, thus preventing the Constitutionnal Court from playing the role of a real actor of criminal policy
Brochot, Vanessa. "La circulation des normes en matière de lutte contre le terrorisme : Etude critique à la lumière des normes internationales américaines, anglaises, canadiennes, espagnoles et françaises". Paris 2, 2010. http://www.theses.fr/2010PA020131.
Pełny tekst źródłaGlotova, Elizaveta. "La circulation des normes pénales : études empiriques des mouvements actuels des normes pénales en Europe et aux États-Unis". Thesis, Aix-Marseille, 2016. http://www.theses.fr/2016AIXM1032/document.
Pełny tekst źródłaThe circulation of legal norms is a phenomenon studied by an international research current named policy transfer studies which has however little interest in criminal norms. Nevertheless, during the last several decades, the globalization processes have made the circulation of these norms faster, more intense and more complex. Based on three case studies, our work shows how the circulation of criminal norms is widely influenced by European harmonization processes, by the diffusion of the neoliberal ideology that accompanied a punitive turn in the criminal policies of most European countries and by the emergence of transnational crimes that require similar solutions. We will characterize the limits of these convergences and analyze them in several theoretical frameworks borrowed from the sociology of deviance in order to understand their implications for those who want to grasp the legislative process on the national level
Cavallone, Giulia. "Obligations européennes d’incrimination et principe de légalité en Italie et en France". Thesis, Paris 2, 2017. http://www.theses.fr/2017PA020003.
Pełny tekst źródłaThe research focuses on the influence of the EU competence in criminal law on Italian and French criminal systems. More specifically it refers to the impact of this competence on the traditional principle of legality and on individual safeguards it represents. The first part deals with the increasing Union’s power to impose specific obligations of criminalization in relation to the fundamental principle of legality in criminal law. This principle acquires different meanings according to different national systems. While in Italy it is mainly conceived as a statute monopoly, France considers clarity, ascertainability and foreseeability of criminal norms as the main aspect. The research analyses whether it is possible to set aside certain national specific features in order to achieve a new European common definition of the principle of legality. Given the practice of the Court of Justice to interpret Union law according to traditions common to Member States, the research has been conducted following a comparative approach. A comparative analysis makes it possible to better assess the choices made by the European Union towards harmonization in criminal matters.The second part of the thesis concerns the possibility to use EU obligations of criminalization and the primacy of Union law to protect fundamental interest, in particular fundamental rights of victims. The research aims therefore at finding a compromise between the legality principle in criminal law and an effective protection of fundamental rights stemming from the European Convention of Human Rights and the Charter of fundamental rights of the EU.Keywords: Principle of legality ; obligations of criminalisation ; comparative criminal law ; EU criminal law ; fundamental rights; victims’ rights
Bouchet, Marthe. "La validité substantielle de la norme pénale". Thesis, Paris 2, 2016. http://www.theses.fr/2016PA020049.
Pełny tekst źródłaThe valid criminal norm is the one that is able to have a legal impact. It allows for the commencement of a prosecution, the imposition of a sanction, and the enforcement of sentences. Firstly, we had to demonstrate what seems manifest: far from being only a matter of respecting the formal requirements, the validity of a criminal norm depends directly on its compliance to substantial requirements that are contained in the French Constitution and the European conventions. The substantial proportion of the validity is demonstrated in two steps. The entry into force of the criminal rule is at first subordinated to its correct integration in the hierarchy of norms. Then, the improper repressive norms are systematically invalidated. Secondly, the substantial part of the validity of the criminal norm has several consequences that are in some cases beneficial but not in others. Indeed, the principles that substantially determine the validity of the criminal norm make the punishment legitimate. However, the emergence of the judge-made law raises many difficulties in a discipline that yearns for stability. In order to overcome them, it appeared necessary to suggest some key elements of resolution
Gautier, Budai Anne-Elisabeth. "Les instruments internationaux de lutte contre la criminalité organisée en Europe du Sud-Est". Paris 1, 2010. http://www.theses.fr/2010PA010302.
Pełny tekst źródłaMantilla, Martinez Marcela Ivonne. "La responsabilité des entreprises transnationales en droit international des droits de l'homme et en droit international humanitaire : le cas du secteur énergétique". Thesis, Paris 11, 2014. http://www.theses.fr/2014PA111009/document.
Pełny tekst źródłaSoft law mechanisms have played a central role in developing the current notion of the responsibility of transnational corporations in human rights as defined in the Guiding Principles on Business and Human Rights, an initiative approved by the United Nations Human Rights Council in June 2011. Corporate responsibility to respect human rights, as defined by the Special Representative, is based on social expectations rather than on legal obligations. It means that companies should “avoid prejudice to the rights of others and to address adverse impacts on human rights in which they are involved”. The limitations of this approach are important in medium and long term. Although the pragmatic approach adopted by the Special Representative has closed the international community debate on the Draft Norms on the responsibility for human rights and transnational corporations and other business enterprises, it also ends the chances of developing an international instrument requiring binding obligations in human rights for transnational corporations. Setting the notion of the responsibility of transnational corporations in human rights exclusively on social expectations seems unsatisfactory and dangerous towards victims of violations committed by these economic actors. Responsibility to respect human rights as defined today reinforces the acceptance of a system where transnational corporations are encouraged but are not compelled to respect human rights, a solution that leaves victims of abuse devoid of any legal action and redress. The purpose of this PhD thesis is to present briefly the evolution of the responsibility of transnational corporations in the energy sector in human rights and international humanitarian law from its origins to our days, as well as to understand the main limitations of the current concept in order to explore potential solutions
Hers, Serge d'. "Norme pénale et groupements sportifs". Limoges, 2001. http://www.theses.fr/2001LIMO0485.
Pełny tekst źródłaQuirico, Ottavio. "Réflexions sur le système du droit international pénal - La responsabilité « pénale » des États et des autres personnes morales par rapport à celle des personnes physiques en droit international". Phd thesis, Université des Sciences Sociales - Toulouse I, 2005. http://tel.archives-ouvertes.fr/tel-00279988.
Pełny tekst źródłaVan, Bosterhaudt Patrice. "La norme pénale pour lutter contre les atteintes à la nature : vers la reconnaissance d'une valeur essentielle". Thesis, Dijon, 2016. http://www.theses.fr/2016DIJOD006.
Pełny tekst źródłaWith the gradual advent of the industrial era, human activity has weighed more negatively on the balance of natural environments. This was followed by the gradual construction of a very repressive law for environment, intended to combat prejudice against nature, but chronically prepared on the very bases of administrative police, a seated concept on the basis of a resolutely disciplinary law, structurally and morally insufficient to reveal an essential value. Tort, as well as environmental liability regime aim to invent new legal concepts in order to redress the damage to nature, but they reveal many limitations.In this context, the criminal standard, meant to be especially utilitarian, is both an auxiliary of administrative right and an auxiliary of remedial standards, and remains without influence in bringing out the real value of the protected interest.It is such an analysis that the protection of nature, as an essential value, may be used only by recourse to an effective criminal law established on the bases of ethical foundations understood and accepted by everybody. This thesis of law fits into a forward-looking approach that would contribute to such an outcome by trying to rethink and restructure the special criminal law of the environment so as to offer the repressive judge the opportunity to exercise a true value judgment on self-destructive and now recognized violations of mankind itself
Reix, Marie. "Le motif légitime en droit pénal : contribution a la théorie générale de la justification". Thesis, Bordeaux 4, 2012. http://www.theses.fr/2012BOR40055/document.
Pełny tekst źródłaIn many legal disciplines, the legitimate reason is a model of justification of acts. The legitimate reason prevents the enforcement of the law, either by creating a right or by exempting someone from a duty. Despite an unprecedented boom, criminal law is hesitant about this vague notion. In order to justify judges' assessment margin, the legitimate reason is commonly considered as a motive. This accentuates the confusion between objective and subjective causes of irresponsibility. The formal approach of the justificatory process is inadequate, making the process increasingly biased. The analysis of the legitimate reason requires a re-examination of the justification theory using a solid understanding of unlawfulness which can help standardize its implementation. The study of the legitimate reason’s justificatory function allows a better understanding of the flexibility of its implementation requirements. The legitimate reason reverses the presumption of unlawfulness on which liability is based. The cause of liability is conditioned by the value judgment made about the offence, whereas the judgment of the reality of the offender’s intention is the condition of his imputation. The legitimate reason stems from circumstances that are external to the offence, and which enable the review of its lawfulness. The objective nature of the legitimate reason is aligned with the fact that it exempts from liability in rem and not in personam. However, the requirements for its application seem exceptional to the common law of justification in two regards: its broad criteria and its narrow field. It is limited to offences of abstract risk that protect secondary values for which the presumption of unlawfulness is artificial. The defendant must prove the legitimacy of his act whereas the abstract legitimacy of the suppression is unconfirmed. The expansion of this dispensatory field of suppression reveals an inadequate control of its abstract necessity. In any case, bringing up legitimate reason is useless as it is implicit to any offence and is considered as a general model of justification. It leaves the judge free to assess the necessity of the penalty on a case by case basis, as the law, by nature, cannot resolve all value conflicts. The post facto justification of socially necessary offences or even trivial offences reinforces the authority of the law by ensuring an enforcement that is aligned with the law's aim of protecting values
Dréan-Rivette, Isabelle. "De l'individualisation à la personnalisation de la peine : approche épistémologique de la norme sanctionnatrice". Rennes 1, 2003. http://www.theses.fr/2003REN1G022.
Pełny tekst źródłaWenzel, Éric. "Le monitoire à fin de révélations sous l'Ancien Régime : normes juridiques, débats doctrinaux et pratiques judiciaires dans le diocèse d'Autun (1670-1790)". Dijon, 1999. http://www.theses.fr/1999DIJOD012.
Pełny tekst źródłaDreyfuss, Lionel. "Le risque arbitral : arbitrage et justice de l'Etat". Thesis, Strasbourg, 2015. http://www.theses.fr/2015STRAA012.
Pełny tekst źródłaParties choosing arbitration are facing various risks. They are very different from the difficulties occurring within state justice. Identifying and assessing the level of those risks can be made possible by comparing those two forms of justice. Regarding the procedural guarantees, it appears that the parties are facing risks of a very weak importance. Arbitration is generally providing the same guarantees than state justice. Sometimes, they are even stronger : duty of disclosure, and reasonable time, for instance. However, the threats over the procedural efficiency are raising bigger problems : the arbitrator benefits from a liability regime far less favorable than the state judge. Moreover, arbitral tribunals' decisions do not constitute a case law. At last, arbitrators do not have any imperium merum powers. For instance, they cannot issue orders for the enforcement of their decision
Kyrylenko, Anastasiia. "L’exportation des normes de propriété intellectuelle par l’UE vers les pays voisins de l’Europe de l’Est". Electronic Thesis or Diss., Strasbourg, 2022. http://www.theses.fr/2022STRAA008.
Pełny tekst źródłaIn this thesis, I have addressed the IPR enforcement provisions of three Association Agreements (AAs), which the European Union (EU) concluded with Georgia, Moldova and Ukraine in the early 2010s. I drew on these AAs as representatives of the EU's often criticized external intellectual property (IP) policy, launched in 2004, which consists of exporting the EU's internal IP rules through trade agreements. Said analysis allowed me to approach the fundamental question of this thesis: is there something good with the EU trade agreements? The plain answer, supported by this thesis on the example of the AAs, is “yes”. The general investigation, which led to these conclusions, was threefold. First, I analyzed the general policy of the EU towards Georgia, Moldova and Ukraine regarding the enforcement of IPRs, as well as its perception in the academic literature. Second, after tracing existing academic criticism of the EU's trade agreements, I examined whether such criticism was justified, as applied to the three AAs. Third, based on this analysis, I identified additional problems that third countries might face when implementing a trade agreement with the EU
Kim, Ari. "Pratiques administratives et judicaires des grands organismes institutionnels en Babylonie, du VIIe au Ve siècle av. J.-C". Thesis, Paris 1, 2019. http://www.theses.fr/2019PA01H013.
Pełny tekst źródłaThis dissertation aims to examine how the great organization in 7th -5th century Babylon treated subjects who violatesocial, moral, or religious norms to define the concept of faults and crimes against the organization and determine the particularity and punishment given to such transgressions. In religion, the conception of faults and crimes was associate with two principles: ritual taboo and respect toward the hierarchy of priests. ln the case of faults involving judicial procedure, a guarantor was punished with the same sanction given to a criminal or suspect. In the case of moral and social transgressions, the great organization treated its subjects in a fatherly manner. Crimes against the great organization can be classified into two categories: those against authority and those against property. Crimes against authority were punished severely. Meanwhile, in the case of violations against the temple’s legal right to property the crirninal were punished by the amended 30-time payment without exception. During this period, several punishments coexisted, and we can see the persistence of certain rules since the Old Babylonian period until 5th century B.C.E; however, we can also see some interference by Persian law
Ternon, Maud. ""Furieux et de petit gouvernement" : formes et usages judiciaires de la folie dans les juridictions royales en France, du milieu du XIIIè siècle à la fin du XVè siècle". Thesis, Paris 1, 2014. http://www.theses.fr/2014PA010538.
Pełny tekst źródłaIn the archives of the royal justice system of the 14th and 15th centuries, madness was distinguished by two distinct judicial attributes: full incapacity in civil proceedings and the exception from penal responsibility in judicial matters. Dementia (furor) was summarily defined as an illness, stemming from the laws of nature, which deprived the subject of his ability to express any valid intent. Within this legal framework, whether or not conduct was deemed mad depended in large part on the specific circumstances of each law suit. The insanity plea could be used, for example, to acquit a crime, to nullify a contract or a testament as well as to prevent a relative from squandering the possessions of the family line by either having him barred and/or placed under guardianship. Those who were regarded as insane found themselves placed, primarily, under the authority of their relatives who thus deprived them of the ordinary privileges associated to adulthood and, should they prove dangerous, kept them at home. If customary law was generally used to arbitrate these situations, more and more appeals to the royal courts and to the opinions of legal scholars were made during this period. Even if the king did not pass judgment on such family matters, he did deputize certain mid-level actors, such as the burghers, to take these vulnerable subjects in their custody. In turn, these lawmen remained particularly attentive to appeal systematically to his sovereign authority
Deshaies, Mélanie. "La contribution du tribunal pénal international pour l'ex-Yougoslavie au développement des sources du droit international public : le dilemme normatif entre droit international classique et droit international pénal". Thèse, 2004. http://hdl.handle.net/1866/2374.
Pełny tekst źródłaThis thesis studies the contribution by the International Criminal Tribunal for the former- Yugoslavia ("ICTY") to the development of Public International Law. Specifically, it analyses the normative dilemma between sources ofClassic International Law - correlated to the will ofStates, as wel/ as legal formalism - and the "International law ofsubstantial unity" - which codifies the Kantian myth of ''peace by law" and moves the classic idea of legality from formalism to legitimacy by using ethical references. The analysis assumes Law's retroactive effect on its sources and considers ideological movements of Contemporary International Law in the jurisprudence of the ICTY. The thesis concludes to a clash between ICTYabstractfindings related to sources ofInternationallaw and the actual "day-by-day" normative practices ofthe Tribunal. While the first brings into play Classic International Law and the rule of law, the second looks more like a neo-naturalism, fashioned by moral and ethical values.
"Mémoire présenté à la Faculté des études supérieures en vue de l'obtention du grade de Maîtrise en droit - option recherche(LL.M)"