로마형법상의 사기 범죄

Abstract

Stellionatus, swindling, was in ancient Rome an offence for which there is no secure evidence before the end of the second century with no more traces in post-classical sources including Codex Theodosianus. It seems to be an imperial innovation. From the very beginning it was sanctioned by cognitio extra ordinem, thus enabling the imperial judge to exercise his discretionary power. It was construed by the Roman jurists of the classical period quasi as a middle thing between public criminal proceedings and private civil proceedings, sharing with actio de dolo such characteristics as constituting fraud (dolus), subsidiarity to other actiones or crimes, and infamy in effect. It was the criminal equivalent of the actio de dolo. This paper is the first special study on stellionatus in Korea. I, therefore, try to give a full-fledged overview of it by translating and commenting on the relevant legal sources including the sedes materiae D.47.20 and C.9.34. Although a detailed debate on each problem cannot be intended, I have not hesitated, needed, to argue critically with other opinions in question which deserve more attention. I think it is helpful for understanding modes of thought in traditional societies to view Roman lawyers’ operation with stellionatus in a comparative perspective. It is also interesting to evaluate this crimen extraordinarium in the light of the modern principle “nullum crimen nulla poena sine lege”.