Legislative process

from Wikipedia, the free encyclopedia

The legislative action procedure ( lat .: Legis actio : (from lege agere ) proceeding from law, verbal complaint) was the first known form of civil procedure in Rome's early republican law . The process comprised acting in ritual and according to fixed slogans.

Procedural history

In its original pre-republican form, the trial was carried out as a uniform and took place under the direction of a magistrate before a jury. Later, at the time of the Twelve Tables Act , it was divided into two procedural steps and the concept of the legis actio was introduced. The court magistrate was no longer responsible for the entire trial, but only for the opening of the trial ( in iure ). He examined the extent to which the arguments of the parties could be assigned to one of the desired means of attack or defense. The correctness of the alleged facts had to be checked in a subsequent procedural step by the judge ( iudex ) in the process ( apud iudicem ). The trial judge was appointed by the plaintiff. It is unclear whether the purpose of dividing the procedure was that the magistrates should only be relieved of expenses or whether the origin of the in iure litigation can be derived from the archaic principle of private arbitration proceedings that were later subjected to "state control" is lively controversial in modern literature. With the organizational separation of procedures, the distinction between legal and factual questions also began.

Consuls initially acted as court magistrates , from 367 BC onwards. BC Praetors . They checked which legal sources were relevant for the asserted claims. Primarily codified twelve-table law and (unwritten) customary law came into consideration, sources of law that were subject to the ius civile . According to modern understanding, it was most likely a kind of admissibility test, because the magistrate could both refuse ( actionem denegare ) and grant ( actionem dare ) the process according to the conditions found . If he allowed the process, the defendant had to get involved with him and participate in it (dispute settlement: litis contestatio ). For the established trial program, the magistrate then selected the jury and announced its chairmanship, in the context of the later two-part procedural forms, that of the judge from the list of judges. The requirement profile of the process program should already have been developed at the pontifices . The authorized judge had to negotiate strictly according to the prescribed procedural formulas ( iudicia stricta ). His competence was exhausted in comparing the asserted claim with the process formula. This had to find itself again or at least be circumscribed. In order to be able to come to a judgment, he was allowed to organize evidence surveys to check the plausibility of the plausible submissions and to make estimates ( aestimationes ) for questions of allocation . In the latter case, the judge acted as an arbiter . Traditionally, manipulation , on the question of the binding regulation of the transfer of property, and stipulation , which had legally binding formal declarations as their subject, are traditional formula procedures .

to form

A total of five forms of legislative action are known. Three related to the judgment process, two to the foreclosure. The first two types of complaint mentioned below are older than the XII Plates:

The oldest legislative action was the legis actio sacramento - still referred to as actio generalis by the high-class lawyer Gaius . It did not depict the subject of the dispute to be negotiated itself, the lawsuit ordered rather cultic-religious "litigation bets" ( sacramenta ), which were then increasingly secularized in the course of their further development. The subject of the dispute and the legal consequences were also indirectly decided, which had the characteristics of circumstantial proceedings. However, at some point this archaic type of complaint was sidelined, as the principle of incidents no longer did justice to an increasingly imperial Roman economy.

At the same time, the legis actio per iudicis arbitrive postulationem developed for disputes resulting from solemnly promised vows ( sponsiones ) or loan transactions ( certae pecuniae ). According to Gaius, the complaint was settled in Tables XII. Since new legal regulations accompanied this development, the function of the judge also changed, who was no longer just an iudex , but also an arbiter . He was soon responsible for acting as an arbitrator and appraiser in addition to his judicial work. This dual function was of particular importance in the case of partition arrangements that arose when property relationships were disputed. In contrast to the above-described type of action, the judgment concerned the legal consequences directly, because the defendant was here "sentenced" to a performance. A similar type was the legis actio per condictionem , which had a no further known area of ​​application and is said to have been brought into being by "younger" laws.

The legisl actio per manus iniectionem and the legis actio per pignoris capionem were used for the enforcement proceedings . In the first case, the enforcement access took place in iure through manus iniectio , the laying on of hands on the person of the defendant. The enforcement act of apprehending the defendant was based on a previous judgment. The legislative actio per pignoris capionem originally had a very narrow scope , because it was used to enforce judgments aimed at the performance of the military. The scope of application was later expanded to include all sacred or public claims against third parties that required a security deposit.

Later developments

During the 2nd / 1st Century BC The legislative procedure with its fixed formulas was increasingly displaced by the form process and was replaced by Augustus 17 BC. Abolished (with a few exceptions). In the further development of the Roman process history, the form process was then replaced again, because from the 3rd century onwards, the cognitive process gradually appeared. In 342 AD, this type of process finally replaced the form process.

literature

Individual evidence

  1. ↑ Marie Theres Fögen : The expropriation of fortune tellers. Studies on the imperial monopoly of knowledge in late antiquity. Suhrkamp, ​​Frankfurt am Main 1993, ISBN 3-518-58155-4 , p. 127 f.
  2. ^ A b c Herbert Hausmaninger , Walter Selb : Roman private law . Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 368–374 (368).
  3. ^ Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 1 no. 2 and 22.
  4. ↑ Gaius : Institutiones , from 4.11 to 29.
  5. ^ Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , pp. 84-86 (85).
  6. ↑ Max Kaser , Karl Hackl [edit.]: The Roman civil procedure law . 2., completely revised and exp. Edition / re-edit by Karl Hackl. 2nd Edition. Beck, Munich 1996, ISBN 3-406-40490-1 .
  7. ^ Jan Dirk Harke: Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 1 no. 22; Herbert Hausmaninger, Walter Selb: Roman private law . Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 386–388.

Web links