로마법상의 상계 -학설휘찬 제16권 제2장(상계에 관하여) 역주 포함-

Abstract

Compensatio, the Roman term for set-off, is nowadays widely recognized,

because it is considered fair for the parties concerned to offset their mutual

debts if certain requirements are satisfied. The Korean Civil Code also has its

provisions pertaining to set-off (§§ 492-499), which no doubt date back to

Roman law. The purpose of this article is to trace the footsteps of, and to

shed new light on the Roman law doctrine of compensatio to contribute to the

proper understanding of the present Korean legal regime of set-off.

To this end, Part I deals with the historical development of the Roman

set-off as described especially by Gaius, the author of the famous Institutes.

This is followed by an introduction of its general doctrinal structure as has

been transmitted to the succeeding generations of lawyers by Roman Emperor

Justinian through his great codifications (Corpus iuris civilis). Part II presents

the Korean translation of, and short commentaries on the second title of the

sixteenth book of the Digest (D.16.2), i.e. that part of the Corpus iuris civilis

containing the main sources of the Roman set-off. Thus, the relevant sources

from the Codex are, as a rule, referred to in the footnotes only.

This article is the first attempt in Korea to study the Roman set-off. For

this reason, I have tried mainly to present it properly, introducing as many

sources as possible. One point that should be stressed here is that

notwithstanding its wording ipso jure (C.4.31.14.pr), Justinian's compensatio

was not a regime operating automatically without a declaration of the will of

a party. In fact, the party intending to demand a counter-claim was required...