S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 43, Number 1/4 (2002)
로마법상의 상계 -학설휘찬 제16권 제2장(상계에 관하여) 역주 포함- : Set-off in Roman Law -with the Translation of and Commentaries on the D.16.2 De compensationibus-
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.43 No.1, pp. 216-271
- 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...