근친상속권 보장에 관한 史的 고찰―로마법상 유산점유제도와 배륜유언의 소를 중심으로―

Abstract

The freedom to make a will was established in Roman law. The core of a testament was heredis institutio which performed an important function to prevent division of family property by appointing one of testator’s children as heir. Generally, the testator gave care to his children who were not designated as heirs by a disposition inter vivos or mortis causa such as dotis datio or legatum etc. As Rome transformed into a commercial society, the abuse of freedom to make a will－which did not care his close relatives (among others liberi), as a result, they suffered unexpected disadvantages－came to the fore as a serious social issue. Roman lawyers and praetor had attempted to solve this problem, also many constitutiones were made during the Roman Empire for this. The rule of praeteritio, bonorum possessio contra tabulas, and querela de inofficioso testamento played an important role to limit the freedom to make a will for the protection of the close relatives of testator. This problem eventually came to an end by the time of Emperor Justinian by the actio ad supplendam legitimam which was the origin form of the forced heirship. The changes of the Roman law of succession vividly illustrates the tension between the freedom to make a will and protection of the close relatives of testator. But one thing has not changed is that the freedom to make a will took priority over the protection of the close relatives at least in classical law. Despite of the fundamental paradigm shift from agnatio to cognatio, the testator was able to dispose of his property at will in effect as long as the testament was written in accordance with the law. The introduction of querela de inofficioso testamento actually forced testator to consider his close relatives in order not to be cancelled his testament for reason of inofficiosum, it meant he violated his duty to care his close relatives. In such a way, however, the close relatives were protected only indirectly. By the time of the Emperor Justinian comprehensive reforms of the law of succession were made. Among them he granted the remedy of actio ad supplendam legitimam to whom received less than his quarta debitae portionis. At the same time, Emperor Justinian explicitly enumerated the reasons for disqualification which justified the exclusion of the inheritance by a testator. These measures can be evaluated as attempts to find a balance between freedom to make a will and the protection of the close relatives.