D.9.1 "사족동물의 가해가 주장되는 경우" -대역 및 주석

Abstract

In this paper I have presented a Korean translation with a short

commentary of the second title of the ninth book of the Digest (D.9.1 Si

quadrupes pauperiem fecisse dicatur) on the harm committed by a

four-footed animal (pauperies). The remedy provided for this sort of harm

is the actio de pauperie. This actio is one of those remedies which Roman

law provided for the harm committed by animals on the basis of the

relevant provisions of the Twelve Tables, the so-called lex Pesolania

concerning harm committed by dogs, the edict of the aediles curules on

the wild beasts (de feris), and the lex Aquilia on the liability ex delicto

etc. In spite of these diverse positive legal norms, however, the regulation

of the problem is not entirely clear. But apparently the range of the

animals for which the owner becomes liable is gradually widened. The

outline of the regulation seems to be the following:

It seems that the Aquilian law is applied, if the harm can be ascribed

to the fault of the animal-owner (D.9.1.1.6 et D.9.1.1.5). Especially when

any dangerous animal causes damage in a place where there is frequent

traffic, the curule aediles' edict sanctions the owner (D.21.1.42). But in

case of no fault on the side of the owner the general rule is that the actio

de pauperie lies whenever an animal commits pauperies when moved by

some wildness contrary to the nature of its kind (D.9.1.1.7). This action

lies against whoever owns the beast when action is brought, not against

its owner at the time the damage was caused (D.9.1.1.12). It aims at the

pecuniary damages for the amount of the harm done, but instead the...