Cassation et juridiction : "Iura dicit Curia"
(2003)
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- Authors
- Supervisors
- Van Compernolle, Jacques
- Abstract
- The dissertation is dedicated to the classical controversy regarding the cause theory in civil court proceedings. This theory deals with the vividly disputed question of the scope of powers of the judge faced with claims which have been wrongly qualified or incorrectly presented by the litigating parties. Two generic approaches have always been opposed: the approach preventing the judge from 'recalibrating' the legal canvas of the court proceedings; the other, more modern, approach offering to the judge more liberty, even responsibilities, on the legal field. The dissertation develops the original idea according to which the controversy can be resolved by the discovery and the description of a powerful synergy between the function of judging on the one hand, and the scope of the judicial control exercised by the [Belgian] Supreme Court over this function of judging on the other hand. The analysis essentially results into the conclusion that the [Belgian] Supreme Court exercises a [judicial] control related to the modern theory of the extension of powers and duties of the judge. Proposals and orientations are derived from this conclusion, regarding the function of judging, as well as regarding the task of the [Belgian] Supreme Court. The development of the reasoning is marked several times by a comparison with French judicial law, which is also confronted with the same questions and encounters. The analysis equally attaches great importance to the fundamental due process rights resulting from Article 6 of the European Human Rights Convention.
- Affiliations
Citations
van Drooghenbroeck, J.-F. (2003). Cassation et juridiction : “Iura dicit Curia”. https://hdl.handle.net/2078.5/194871