Penalty action

The Pönalklage ( actio poenalis ) designated in Roman law a collective term for various criminal charges. It was available to victims of private crimes such as theft ( furtum ) or defamation and bodily harm ( iniuria ). The injured person obtained a tort obligation ( obligato ex delicto ), directed towards the payment of a fine. This could be asserted against the perpetrator in private civil court proceedings ( iudicum privatum ).

Nature of the penalty action

Originally, penal actions served to redeem conceded rights of revenge, as they were still available to the injured according to ancient Roman law. In order to avoid excesses and to maintain legal peace, offenses should generally no longer be atoned for by physical retribution. The corporal punishment was replaced by property punishment. The threat of debt bondage or sale abroad ( trans tiberim ) only served as a means of coercion to finally enforce the payment of the fine ( poena ).

In classical law , fines were established as a principle of punishment.

Variants of the private penal action in civil proceedings

Simple penal action

The pure penalty action only reinforced the criminal act with a penance. Penalty payments initially consisted of fixed rates of livestock or amounts of money. In the late republic , the estimates were based on the praetor's specifications from his edicts ( edictum perpetuum ) and on the discretionary decisions of the judge entrusted with the process ( iudex ). He was free to determine the amount of the fine based on the individual nature of the respective breach of law. If there was also financial loss, this could also be prosecuted. The current value of the item was used to determine the amount of the compensation.

Mixed penal action

With the mixed penal action, both claims could be pursued at the same time. The offense was thus considered to have been compensated for by the dual function of the mixed penalty action ( actio mixtae ). A further, only prosecuting action could no longer be pursued.

Special features of the penalty action

Legal consequences for the offender's heirs

The civil penalties and compensation suits under private law were not subject to any statute of limitations, but were not passively hereditary. The thought of atonement was directed only against the offender and not against his relatives. The fee-based criminal actions, on the other hand, were limited to one year in order to maintain legal peace. Relatives were authorized to conduct proceedings if proceedings were already pending during the lifetime of the atonement. If the convicted perpetrator died, the surviving dependents, as his legal successors, also had to pay the fine from the sentence.

To compensate for financial losses, it was generally possible to bring an id quod pervenit claim against the persons who were wrongly benefited from the act, in particular the heirs of the perpetrator .

Legal consequences for the heirs of the injured party

Offenses from the iniuria , which were primarily directed against the person and not against the property, were actively inheritable. The right of action was lost with the death of the person entitled. All other penal actions could be initiated by the heirs.

Penal and prosecuting action in criminal justice

Certain offenses ( crimina ) were considered harmful to the general public, so that in addition to the private claim to atonement, there was also a public interest in prosecuting the perpetrator. Such proceedings ( iudicium publicum ) have been conducted before an ordinary quaestiones court ( quaestiones perpetuae ) since the Leges Corneliae . The jury courts, which were permanently established in the late republic, were special courts, as each forum was responsible for a specific offense.

In principle, it was possible for the injured private individual, in addition to the competing state criminal prosecution, to bring an appropriate action or a penalty action. In the case of the forgery of wills ( falsum testimonium ), which has been counted as an official offense since the Lex Cornelia testamentaria nummaria , it was also possible to pursue claims settlement under private law.

Addressees of the penalty action

There was competition so that penal actions could be accumulated without restriction ( cumulare ). Anyone (directly) involved in the act (perpetrator, instigator and accessory) could become the addressee of the respective criminal complaint.

The Noxalhaftung against tatunbeteiligte Third was indicated when it had been at the crime offender is a slave or other non-violent person who is subject. The addressee of the criminal complaints in the form of the actiones noxales thus became the perpetrator of violence. The perpetrator had to be released from the violence in order to lift the noxal liability.

The penal action in the change of the Roman judicial procedure code

The judiciary in ancient Rome underwent several fundamental changes in its long development. In addition to an existing, generally regular jurisdiction in the Roman Republic, the extraordinary courts of justice of the emperors with the administrative apparatus of a judicial civil servants were created.

With a few exceptions, civil penal actions have been replaced by criminal prosecution by the imperial court. The civil servant jurisdiction replaced a private criminal action aimed at penance ( poena ) with official cognition, which generally provided for tougher sanctions.

See also

• Roman criminal law and criminal procedure law

Ancient sources

Not legal sources

• Aulus Gellius , Noctes Atticae .

Legal sources

• Gaius : Institutiones , Digest .
• Ulpian : Digest.
• Iulius Paulus : Digest.

literature

• Joachim Ermann: Research on Roman Law; Criminal proceedings, public interest and private prosecution: Investigations into the criminal law of the Roman Republic , Böhlau Verlag, Cologne, Weimar, Berlin, 1999, ISBN 3-412-08299-6 , Die Bacchanalien, The substantive legal bases of the proceedings , pp. 23-27.
• Heinrich Honsell : Roman law . 6th edition. Springer, Berlin / Heidelberg / New York 2006, ISBN 978-3-540-28118-4 , § 57 General principles of tort liability, p. 109.
• Max Kaser : Roman private law . 2nd Edition. CH Beck, Munich / Würzburg 1971, ISBN 3-406-01406-2 , § 39, pp. 146-150, § 142, pp. 609-614, § 143, pp. 614-619; § 145, pp. 623-625; § 146, pp. 625-630; § 147, pp. 630-634.
• Max Kaser / Karl Hackl: The Roman Civil Procedure Law : Verlag C. H. Beck, Munich 1996, 2nd edition, ISBN 3-406-404901 , § 1, pp. 1–12; § 20, pp. 131-145; § 42, pp. 295-301, § 43, pp. 304-306; § 45, pp. 317-320; § 47, pp. 326-334; § 54, pp. 372-373.
• Max Kaser: Roman legal history . 2nd revised edition. Verlag Vandenhoeck & Ruprecht, Göttingen 1976, ISBN 3-525-18102-7 , § 29, pp. 121–128; § 32, pp. 138-143; § 33, pp. 144-147.