로마형법상의 사기(詐欺) 범죄 - D.47.20 Stellionatus 역주 -

Abstract

Stellionatus, swindling, was in ancient Rome an offence for which there is no

secure evidence before the end of the second century with no more traces in

post-classical sources including Codex Theodosianus. It seems to be an imperial

innovation. From the very beginning it was sanctioned by cognitio extra ordinem,

thus enabling the imperial judge to exercise his discretionary power. It was

construed by the Roman jurists of the classical period quasi as a middle thing

between public criminal proceedings and private civil proceedings, sharing with

actio de dolo such characteristics as constituting fraud (dolus), subsidiarity to

other actiones or crimes, and infamy in effect. It was the criminal equivalent of

the actio de dolo.

This paper is the first special study on stellionatus in Korea. I, therefore, try

to give a full-fledged overview of it by translating and commenting on the

relevant legal sources including the sedes materiae D.47.20 and C.9.34. Although

a detailed debate on each problem cannot be intended, I have not hesitated, if

needed, to argue critically with other opinions in question which deserve more

attention. I think it is helpful for understanding modes of thought in traditional

societies to view Roman lawyers operation with stellionatus in a comparative

perspective. It is also interesting to evaluate this crimen extraordinarium in the

light of the modern principle nullum crimen nulla poena sine lege.