Roman Law Research Articles

프랑스 민법에서 소멸시효 완성의 효과

In this article, the author examines the effects of liberative prescription in French civil law and its implications for the interpretation of the Korean Civil Code. The conclusions can be summarized as follows:
 1. The question of whether a right is extinguished by the expiration of a prescription period, whether the expiration must be pleaded as a defense, and who may plead it, is a long-standing issue that has been debated since Roman law.
 2. The provisions of the French Civil Code regarding the effects of liberative prescription generally align with the absolute theory in Korean law. The expiration of a prescription period results in the extinguishment of the right or its action, allowing the benefit of prescription to be claimed by other interested parties in addition to the debtor. However, the court cannot consider it ex officio, and restitution is not allowed if the extinguished obligation has been paid. In contrast to our absolute theory, French law differs in that the debtor's other creditors can claim the benefit of prescription only to the extent that the debtor is insolvent.
 3. The following observations can be drawn from French civil law for the interpretation of the Korean Civil Code. First, the necessity of claiming the benefit of prescription is closely related to the possibility of its waiver, and under the absolute theory, therefore, the defense of prescription is treated as a procedural matter concerning the extinguished rights. Second, in view of Article 404 (2), a debtor should be able to contest a defense of prescription against the oblique action of their creditor's creditor if the latter's claim is already time-barred. Third, claiming the benefit of prescription by other creditors of the debtor in question, including mortgagees in inferior rankings, is permissible, but only to the extent that the debtor is insolvent, aligning with the policy of the oblique action.

Mater Sempre Certa Est – Should We Register Transsexual Woman-to-Man as a Father? Remarks on the ECHR Judgment O.H. and G.H. v. Germany

The study is designed as an in-depth interdisciplinary report of the case O.H. and G.H. against Germany, which was analyzed by the European Court of Human Rights in Strasbourg (ECHR). The authors explain why the best interest of the child should prevail over the interests of a trans man, who gave birth to a child and requests to be registered as the father of the child. One of the reasons is mater semper certa est, a universally known principle of Roman law stating that “the mother is always certain” and no counterevidence can be made against this principle. In this regard, the best interest of the child and the child’s right to know his or her origin shall be observed. There are also several other life areas, that would be negatively impacted by breaking this principle.

The Coexistence of the Legal Inheritance with the Testamentary Inheritance

The research surprises the cases and the conditions in which the legal inheritance coexists with the testamentary inheritance. In the period of the old roman law the testamentary inheritance was priority, because the gratified successor through the will for a part of the inheritance was extending the vocation for a part of the inheritance of which de cujus didn’t dispose of. In the actual legislation, the legal inheritance coexists with the testamentary inheritance in some cases, so that a part of the inheritance is sent to the gratified one based on the will and the other part is sent to the legal heir through the virtue of the law. The cases in which the inheritance can be legal or testamentary are different, because the sping of the successoral vocation is the law or the will of the one who lets his fortune (de cujus). Therefore, the two types of inheritance can exist at the same time not only when the deceased disposes of a part of his fortune by will, but also when the will contains legates which consume the full successoral mass. The coexistence of the two forms of inheritance represents the result of the bound between the freedom of the will with the instituted protection by law of the mandatory heir.

Dogmatic and Legal Grounds for the Administration of Mass Intentions by the Particular Church Legislator

Benedict XVI distinguishes between munus and potestas as useful concepts in understanding the authority of the diocesan bishop. While the concept of potestas goes back to the Roman law of jurisdiction, the munus terminology is relatively new, since it stems from the theology of Dietrich von Hildebrand, who distinguished between munus sanctificandi, munus docendi and munus regendi. As highlighted by Pope Benedict XVI, thanks to the orders of the episcopate, the bishop shares in the munus, which is not equal to potestas; therefore only the diocesan bishop, who persists not only in communio but also in communio hierarchica with the Catholic Church, enjoys legislative power, which he exercises directly; however, his sacred power of the sacraments can be exercised through sacred ministers, and in the case of the executive power also through the lay faithful, by virtue of missio canonica. The bishop implements that by administering Mass intentions and offerings donated in the diocese.

Fundamental principles of Roman law and their relation to legal argumentation

Modern philosophy of law defines the principles (foundations) of law as the initial conditions of law, the determinants of its content, on which law relies and which constitute its foundation. At the same time, most European countries use ancient Roman legal formulas in their modern legal systems, which evolved into maxims and became the basis of modern positive law in the form of principles. The establishment of general legal principles, concepts/ constructions is reflected in the legislation, doctrines and case law of most countries. In this article, we focused on the values and concepts formulated in the 1930s by the novelist and legal historian F. Schultz, including the principle of isolation/abstraction, the principle of simplicity and tradition, the principles of freedom and authority, the principle of humanity, the principle of loyalty/ good faith, the principle of security, and some others. These principles continue to be researched by Ukrainian and foreign scholars who supplement this list and study their impact on the legal systems of Ukraine and other countries.
 We emphasize that the principles were not formulated by Roman lawyers, for example, in the preamble to their own works or in a separate law or legal document. Roman law was casuistic, it mainly consisted of decisions made in individual cases. This is related to the peculiarities of legal argumentation in ancient Rome, which had a dual nature. On the one hand, they were determined by the rules of law, and on the other hand, they reflected a system of filling gaps in legal relations by applying the principles of law and the oratory techniques of lawyers of that time.
 Modern legal scholarship has tried to find and argue for the existence of general principles of Roman law development as a basis for making specific decisions, or because Roman lawyers sometimes used certain terms and concepts on which their decisions were based.

The Role of the Discipline of Canon Law in the Liturgical Formation of the Faithful of the Catholic Church

In order to show the role of canon law in the liturgical formation of the faithful, the author undertakes an interdisciplinary reflection (philosophy, theology, legal sciences) on the understanding of law. Analysing the existing definitions of canon and liturgical law, she notes the positivist approach in this field. Then, on the basis of metaphysics and Thomism, she proposes a different view of law, canon law and liturgical law. She also notices the presence of Roman law in the church's legal culture. The legal formation of the faithful, based on such foundations, will allow for a deeper understanding and a better experience of the liturgy.

Gentile Land Ownership in the Land of Israel: The Palestinian Talmud in Light of Biblical Models and Roman Law

Gentile Land Ownership in the Land of Israel: The Palestinian Talmud in Light of Biblical Models and Roman Law

Legal Knowledge among Late Roman Elites: The Evidence of Jerome

Abstract: Hans-Dieter Spengler sodali et iuris consulto Jerome's oeuvre is huge; it comprises translations and commentaries of many books of the Christian Bible, a universal history, a history of Christian literature, biographies of monks, many treatises, and more than 130 letters addressed to people from the educated upper classes of the late Roman West. This article investigates what role Roman law played in Jerome's writings, what he knew about it, and how he evaluated it. It also looks at his views on late Roman jurisdiction and collects the evidence he provides for petitions to the emperor and for imperial rescripts. The main section analyzes Jerome's ideas about imperial legislation, his knowledge of individual laws, and the way he presented them. On this basis, it is argued that Jerome's writings bear impressive witness to the importance of Roman law for both the social practice and the mindset of the provincial and local elites in the late Roman empire.

Just Title as Justification for Acquisitive Prescription: Global Discussion and Roman Legal Roots

There are statements in contemporary legal discussion that undermine the legitimacy of maintaining the institution of usucaption in specific legal orders. It is uncertain if there is any justification for acquisitive prescription at all. European law experience is also familiar with this discussion. The institution of usucaption is not a uniform concept – there are many variants in different countries. Are we really talking about one institution or different ones, depending on the existence of one prerequisite or another? One of the prerequisites for acquisitive prescription, not present in every legal system, is interesting - the prerequisite of ‘just cause of usucapion’. Polish law does not require such a prerequisite, for instance. The basic and unquestionable requirement of usucaption in the classical legal development of this institution, in Roman Law, is unquestionable. The first statements of such jurists as Trebatius, Sabinus and Cassius show us the first conceptualization of acquisitive prescription, in which the just cause of usucaption prerequisite is immediately present and affects the nature of this legal institution - without it, these jurists did not see the possibility of acquiring things by usucapio.

확인소송원형관의 현대적 변용

In terms of history, it couldn’t be denied that the three type of lawsuit(coercive-, declaratory-, constitutive remedy) were recognized as independent needs in the development process of Civil Procedure, and current practice is also based on the independence between types.
 However, the theory that a declaratory remedy is a basic form of all lawsuits is theoretically valid to some extent in that all three types of the above lawsuit confirm the existence of rights and that the effect of the judgment has res judicata.
 Although modern and general confirmation litigation was established in Germany in the 19th century, its origins go back to Roman law, and it is a system that has developed in line with the needs of the times. In addition, it is necessary to take into account that in modern society, a declaratory remedy can play more diverse functions and roles in the conflict between various values and interests and the relief of the parties' rights.
 As such, if a declaratory remedy is a product of historical development, there is a need to develop and transform it to suit the needs of modern society.
 In seeking to expand the scope of relief for the parties' rights and at the same time rationalize the procedure, it is necessary to actively consider that a declaratory remedy is the basic or prototype of all lawsuit. Accordingly, in cases where it is more appropriate to resolve disputes, the responsibility and role of implementation shall be divided and supplemented or replaced. In designing more effective remedies in modern litigation, it is considered desirable to actively utilize the confirmation action as the basic or first step procedure.

On the Greek-philosophical impact on Labeo’s definition of the locatio conductio operis

Roman law was influenced by Hellenistic concepts across the various periods of its development. This influence is reflected in the inclusion of Greek terms in the Latin texts of Roman jurists. The following article addresses Labeoʼs definition of locatio conductio operis and its interpretation in Romanist doctrine. The article explores Labeo’s use of the terms ἀποτέλεσμα and ἔργον in his definition, offering a linguistic analysis of these lines that attends to the meaning of the Greek language usage. In conclusion, the significance of the Hellenistic influence here is grounded by reviewing some relevant aspects of Greek law and the circumstances under which Labeo wrote his text, which is cited in D. 50.16.5.1.

Social Context of Civil Process for Sustainable Development

This paper focuses on the existing mechanisms for the participation of vulnerable persons, including persons with disabilities and children, in civil disputes. As modern democratic society develops the concept of a social state, ensuring equal conditions for the participation of vulnerable persons in civil turnover is essential. Hence, the aim of the study is to identify existing legislative gaps and challenges that prevent the participation of vulnerable persons in civil disputes. Humanity has agreed on a sustainable development plan, in which social sustainability is set as one of the main goals. However, modern civil procedure law is mainly based on the codification of the 19th century, which in turn originates from Roman law. Since then, public relations have changed and modern technologies are constantly developing. The concept of a digital judge, smart contracts, and a blockchain system has already emerged. Therefore, the regulations of civil proceeding do not respond to modern challenges, and it is necessary to update civil procedure legislation in order to provide an equal platform for the participation of vulnerable persons in civil disputes. The purpose of the article is to review the rules of civil procedure law in terms of a social context based on the international approaches, practices, and research. Through a mixed-quantitative, qualitative, and general research methods, as well as comparative analysis, specific recommendations are introduced that will bring civil dispute resolution closer to sustainable development plans and ensure the equal participation of vulnerable persons in civil dispute.

On the Similarities and Differences between Tang Law and Roman Law in the Judicial System

The legal system of the Tang Dynasty is the most Chinese legal system, and the judicial system of the Tang Dynasty is an important part of the legal system of the Tang Dynasty. In the background of the Chinese law system, comparing the judicial system of the tang dynasty in the eastern Roman empire, and using the research method of comparative law from the legislative background, legislative technology, the guiding technique of the two countries and the analysis of the characteristics of the judicial system in the history of the rule of law in the world.

Classical (Roman) law in modern society

Classical (Roman) law in modern society

Three-dimensional property: Current development trends on the Polish example

Abstract 126The majority of modern European legislations traditionally follows the concept of land ownership derived from Roman law. It is based on the assumption that the owner’s rights are unlimited in spatial terms. Within this understanding, the spatial scope of ownership extends to open space above and below a specific part of the land’s surface, delineated two-dimensionally. Several exceptions to the general underlying approach have been successively introduced in particular European legal systems in the course of historical development. These include, in the first place, building leases and apartment ownership as well as separate ownership of buildings. Furthermore, widely accepted limitations as to the vertical scope of ownership stem from specific regulations in the fields of mining law, geological law, water law and aviation law. Another manifestation of departure from the traditional concept of land ownership are legal solutions falling into the category of three-dimensional (3D) property, which is of increasing interest nowadays in view of growing needs for new forms of ownership and land use in densely built urban areas. At the core of the concept of 3D property in the strict sense lies the possibility to divide the space into distinct layers defined by horizontal and vertical planes, and to create so-called three-dimensional immovable properties which constitute independent objects of property rights. Such 3D units can serve multiple above- and underground investment purposes. Regulations regarding different models of 3D property rights have already been adopted in a number of countries in Europe and worldwide. Recently, conceptual work on layered ownership has been undertaken in Poland, which has opened a discussion in the legal scholarship on the future legislative changes to be implemented in order to introduce the notion of 3D property to domestic law. In parallel with these tendencies, the idea of 3D cadastre is being promoted. It offers 127the possibility to register real estate objects located at different levels. Worthy of note in this regard is also the impact of the current technological advancements on increasing the investment potential of urban space through 3D property formation. This article elaborates, first, on the general concept and selected types of 3D property rights existing in national jurisdictions. Against this background, the proposal for the new legal construct of layered ownership has been discussed with particular consideration of the possible ways of adapting it to the Polish property law framework. Some of the opportunities and challenges brought about by the 3D property rights development have been then outlined in the context of extensive implementation of emerging technologies in real estate transactions.

Anticipating Disasters

Following Valens’s defeat at the hands of the Goths at the Battle of Adrianople in August 378 and immediately before Alaric’s sack of Rome in August 410, both Gratian and Honorius issued temporary forbearance measures that relaxed the otherwise coercive religious policies against Donatists in North Africa. The present article analyzes these episodes as case studies in how the late Roman government reacted to disasters and crises in the religious sphere. These episodes are particularly puzzling because they go against the tendency of increasing coercion against schismatics and heretics expressed in late Roman laws and imperial propaganda. The article argues that late Roman religious policy that attempted to enforce theological orthodoxy was mainly the product of episcopal lobbying and petitions, and therefore it could be suspended when more pressing concerns, such as the loyalty of a crucial province for the food supply of the city of Rome, hung in the balance.

Social Context of Civil Process for Sustainable Development

A democratic society develops the concept of a social state, expressed in ensuring equal conditions for the participation of vulnerable persons in civil turnover. At the same time, humanity has agreed on a sustainable development plan, in which social sustainability is set as one of the main goals. Modern civil procedure law is mainly based on the codification of the 19th century, which in turn originates from the "Roman law" created precisely for the citizens of Rome. But since then, public relations have changed and modern technologies are constantly developing. The concept of a digital judge, smart contracts, and a blockchain system has already been developed. Therefore, it is necessary to update the civil procedure legislation to find out how it provides an equal platform for the participation of vulnerable persons in civil disputes. The purpose of this article is to discuss procedures for regulating civil disputes in a social context. As a result of identifying existing gaps, specific recommendations have been developed that will bring civil dispute resolution closer to sustainable development plans and ensure the participation of vulnerable persons in civil disputes on equal terms.

라이프니츠(GottfriedWilhelmLeibniz)의 법사상

Leibniz was the last all-round man of the 17th century who made great achievements in various fields, including philosophy, mathematics, and logic. Just as Monadology argued that everything in the world was planned in harmony, it is relatively less known that he was a jurist who pursued universal law by organizing the most basic concepts of law, from ancient Roman law to the then-commonly used Empire's Landrecht. However, he pursued practical law that could integrate the real world, not just as a intellectual discipline, and this interest is well incorporated into his theory of justice and natural law.
 For Leibniz, justice is the benevolence of the sage. In other words, justice is based on mutual goodwill that allows all humans to do good to each other. In other words, justice is the prudentia of whether to help or harm others. For Leibniz, mutual love between humans is the best law at the same time. This is a completely different approach from Hobbes. For Leibniz, the purpose of natural law is to maintain and promote a 'natural society'. In other words, natural law is for the good of those who comply with it. The content of natural law is not just for oneself, but for the good of others.
 The three stages of natural law he classified are, first, a strict law based on the principle of law called 'nemene laedere', second, 'subject cuique tribuere' is an equity law based on the principle of law, and third, 'honeste viere' is a pietas that aims for the principle of law.
 The view of justice and the theory of natural law presented by him can be evaluated as having the possibility of a variety of ideas that are newly illuminated and reinterpreted in modern times.

Roman Law as a Fundament of Modern Civil Law

Roman lawmakers and legal advisers have created a system meant to organize social and economic relations in a market economy created by the Roman state, which, because of its great territorial conquests becomes the most powerful state of the Antiquity spread throughout three continents. Roman law was a priceless thesaurus of universal civilization, as it represented the conceptual structure that would later become the basis of all future institutions, principles, and regulations of legal systems. In the modern age, along with the coding activity, Roman law was a theoretical and practical guide for all future regulations.

Legal Complications Relating to Things Outside Commerce: A Overview from Past to Present. Based on the Lottery Case in the State of Mizoram

Abstract: “Res Extra Commercium” is a Roman law doctrine that translates to “things outside commerce”. In State of Bombay v R.M.D. Chamarbaugwala , Justice Das introduced this doctrine into the Indian jurisprudence. The doctrine was introduced to constrict the scope of freedom of trade and commerce, a fundamental right, guaranteed under Article 19(1)(g) of the Indian Constitution. It constricts the scope by excluding certain “immoral” or “noxious” trade activities from the scope of Article 19(1)(g) and thereby, depriving them of Constitutional protection. The doctrine of res extra commercium seeks to exclude certain activities from the ambit of freedom of trade and profession guaranteed under Articles 19(1)(g) and 301 of the Constitution of India. Tracing back the origin of the doctrine to Roman Law has commented to the effect: The res extra commercium doctrine traces its conceptual roots to Roman law. Res in commercio, in Roman law, were things capable of ownership and hence, the subject of property rights, while res extra commercium were things incapable of ownership. In light of this, the doctrine applies to those things that are not objects of commerce i.e., they are extra commercio. In Justinian’s Institutes of Roman Law, only three classes of entity are conceptually treated as res extra commercium: