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Le substantiel dans l'appréciation du droit d'agir

Abstract : It is conceded that, in considering the right to act, an interest in bringing proceedings is the condition of the action whereby the claimant is in a position to benefit from the trial. But this substantial connotation accentuated by the controversial requirement of legitimacy of interest to act is such as to thwart, in the name of legality, the logic of a chronology of procedural technique. Indeed, it is difficult, to examine this legitimacy without involving the substance of the law to the detriment of the principle of the procedural separation of the examination of admissibility from that of the substance of the law under discussion. The debate is old and still persists today in spite of the doctrinal approaches to solution. This study examined the influence of this situation on the process of judicial adjudication of the right under discussion in order to propose a solution approach to the two problems. At the end of the journey, we notice that the source of the evil is in the history of Roman law and the African customary law, and within the actual procedural law. And to remedy this, it is necessary to proceed by a reform of the Code of Civil Procedure, remove the legal sources of perplexity and operate a dual mechanism : detach the examination of the legitimacy of the interest of this stage of admissibility; then, attach it to the examination of the law, its normal field of existence in the judicial process. We would then talk about the legitimacy of the right. It is therefore possible to redefine the notion of action by taking it no longer as a right, but rather as a way for the effectiveness of the right, as a means, a means among many others.
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Submitted on : Thursday, February 27, 2020 - 5:52:14 PM
Last modification on : Sunday, September 27, 2020 - 4:24:21 AM


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  • HAL Id : tel-02493446, version 1



Iréné Aclombessi. Le substantiel dans l'appréciation du droit d'agir. Droit. Université Panthéon-Sorbonne - Paris I; Université d'Abomey-Calavi (Bénin), 2019. Français. ⟨NNT : 2019PA01D013⟩. ⟨tel-02493446⟩



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