roman law 罗马法英文资料

Roman Law and its influence on modern interpretations of law

non quia Romanum, sed quia ius ….

not as it is Roman, but as it is a law…

Roman

Law

had

a

considerable

influence

on

the

development

of

later

legal

systems,

particularly

in

Europe.

Originally,

there

was

the

common

law,

i.e.

unwritten

law,

in

the

Roman

Empire.

Only

later

the

law

was

written

down

in

order

to

weaken

the

Patricians?

position as

the

guardians

of the law. The first example of a written law is

the Code of the

Twelve Tables (450 BC), which attributed equality to all Roman citizens. Since it was open to

the public, it was called ?

Ius civile’

.

An important innovation in the legal system dates back to the Emperor Augustus. From this

time onwards, precedents and important legal scholars? co

mments, such as Gaius, Papinian,

Julius Paulus and Ulpian, were referred to. In addition, the Emperor Augustus?s decrees were

of great importance. However, within time this legal system reached its limits, as it became

more and more complex. Under Emperor Justinian I it was therefore improved and henceforth

it was called ?

Corpus Iuris Civilis’

. As one of the most important compilations of Roman Law

it consists of four parts:

?

institutions

?

digest

?

code

?

amendments

This

concept

lies

at

the root of various legal

systems, as for example the European one.

In

contrast to Roman Law, law is divided into civil law and public law nowadays.

This portfolio aims at presenting aspects of civil law, which consists of five parts:

1.

General remarks

2.

Family law

3.

Law of things

4.

Law of obligation

5.

Law of succession

1.

Acquisition of possession and property

The terms ?possession? and ?property? are often used synonymously. Nevertheless, there is an

important difference.

“Wer eine Sache in seiner Macht oder Gewahrsame hat, hei?t ihr I

nhaber. Hat der Inhaber

einer Sache den Willen, sie als die eigene zu haben, so ist er ihr Besitzer.“ (ABGB, §309)

?Alles, was jemanden zugeh?rt, alle seine

k?rperlichen und unk?rperlichen Sachen, hei?en

sein Eigentum.“ (ABGB, §353)

The term ?property? (

dominium, proprietas) refers to the right to dispose of a thing, while the

term

?possession? (possession) designates the actual

power over a thing.

As several

famous

Roman

legal

scholars,

such

as

Ulpian

(D41,2,12,1),

already

pointed

out,

distinguishing

between these two terms is essential.

According to this distinction, a thief takes possession of a thing, but he can never become the

owner of it. The person who had something stolen can demand his property back

–

this is also

possible in front of a court.

Similarly, taking a loan means gaining possession of financial means. However, it does not

imply becoming the owner of the money.

Possession

can only be

gained ?

corpore

et

animo’,

that is,

one, firstly, has

to

be

willing to

possess a thing and, secondly, be physically close to the thing.

Acquisition of possession (as well as property) of movable, that is, ?living? things works in a

slightly different way. The owner of a plot of land also owns the animals on his land. He is

allowed to hunt and fish as he likes and does not require a shooting or fishing license to do so.

Furthermore,

he

can

decide

whether

others

are

allowed

to

hunt

and

fish

on

his

land.

Trespassers may be prosecuted. However, by killing an animal trespassers gain possession of

these animals, even though killing was prohibited in the first place. Enclosures and fish ponds

constitute exceptions to this rule.

In the case of tame animals the property right

does not apply anymore if the animals leave

their owner and do not return.

In general, in order to gain possession of an animal, one has to seize the animal (occupatio).