로마법상의 선관주의의무

Abstract

It is commonly accepted that the possession of money is equal to it's ownership because the money is not a kind of goods, but a symbol for value. It is commonly held that “the care by the good manager” is defined as “the general principle of the duty of care in the civil law” to “the degree of care required for the average person in trades”. In the end, the duty of care is one of the important examples of the modern principle of fault responsibility. It is also generally accepted that the duty of care in the current law goes through the Japanese Civil Law and the French Civil Law and ultimately to the duty of care by “diligens et bonus pater familias” of the Roman law. The goal of this article is to show in what way and in what ways the “good manager” in our civil law is different from the “bonus pater familias” in Roman law. In order to do so, this article first examines the historical process in which not the notion of bonus pater familias, but the concept of culpa and dolus, is formed in the Roman law. Then, we look at specific cases of the duty of care in the Roman law according to individual contract types. In conclusion, the duty of care in the present law obviously derives from the Roman term “the duty of a good paterfamilias”. However there is a big difference in the meaning of both. The term “the duty of a good paterfamilias” is only one of the terms used and developed by the Roman lawyers in relation to the relationship of culpa and dolus. The former term itself never expresses the whole of Rome's legal reasoning. The identification of the two is perhaps a result of uncritically projecting the conceptual legal thought of the current law into the Roman law.