로마법상의 문서위조죄－ Lex Cornelia de falsis에 관한 소고 －

The oldest statute which sanctioned the crime of falsum in ancient Rome was the Twelve Tables. The Twelve Tables had a provision putting to death those who committed perjury (falsum testimonium). Of course, pertinent criminal cases were known before the Twelve Tables consolidated earlier traditions into an enduring set of laws. Perjury was severely punished, for it affected the trustworthiness of social relations in the then oral society of Rome to a great extent. On the contrary, the very statute on the forgery of documents was not promulgated until 81 B.C., as Cornelius Sulla had his dictatorship. Lex Cornelia established a quaestio perpetua as a jury court having jurisdiction over forgery cases. It sanctioned in terms of substantive law forgery of testamenta (wills) and counterfeiting of coins and for that reason it was called as such lex Cornelia testamentaria nummaria. As time went on, the statute was applied extensively to other kinds of private and public documents as well, so that it was called also lex Cornelia de falsis. Lex Cornelia seems to be as follows if we accept as a matter of convenience the reconstruction of the text by Kocher (1965): ... IS PRAETOR IVDEXVE QVAESTIONIS QVI SORTE OBVENERIT QVAESTIO DE FALSIS TESTAMENTIS NVMMISVE EIVS QVOD IN VRBE ROMA PROPIVSVE M PASSVS FACTVM SIT VTI QVAERAT CVM IVDICIBVS QVI EI EX LEGE SORTE OBVENERI<N>T DE CAPITE EIVS QVI TESTAMENTVM FALSVM SCIENS DOLO MALO SCRIPSERIT SIGNAVERIT RECITAVERIT TESTAMENTVMVE SVBIECERIT AMOVERIT CELAVERIT SVBRIPVERIT RESIGNAVERIT DELEVERIT INTERLEVERIT SIGNVMVE ADVLTERINVM SCVLPSERIT FECERIT EXPRESSERIT QVIVE SIGNVM AMOVERIT RESERAVERIT CVIVSVE DOLO MALO ID FACTVM ERIT ... According to this, those who write down false wills, misuse seals, adulterate, delete, or conceal wills, give documents to unauthorised persons, or make use of wills unlawfully commit acts amounting to forgery. The penalty comprised capital punishments, aqua et igni interdictio, deportatio, and confiscation of property. Penalties were later differentiated according to the social strata between ordinary people (humiliores) and the elites (honestiores). Fixing of the penalty became more and more flexible as extraordinary cognitiones prevailed. The later development of law began to newly categorize various unlawful acts into falsum which were at the beginning not covered by the very statute. It happened through many senatusconsults and interpretations of jurists. Above all, senatus consultum Libonianum (16 A.D.) under Tiberius and edictum Claudianum penalized adscribere by the scribe of wills of others, i.e., adding legacies for the benefit of himself and declared such testamentary dispositions virtually in favor of the scribe of a will to be void. Many cases reported in the Digest or Codex of Justinian were, as a matter of fact, characteristically concerned with this problem. In ancient Rome, the primary policy concern was on the forgery of the wills of private citizens rather than that of public documents (tabulae publicae, instrumenta publica), imperial or provincial. The contrast with the Far Eastern legal cultures, especially Chinese and Korean, which took from the outset almost exclusively public documents into consideration, is very significant and revealing. Roman law always was concerned with the genuineness of a document, as a signum was used to secure it by sealing. The formal side of a document was of fundamental importance. Meanwhile the truth of the contents of a document was also viewed in terms of forgery. Falsum facere sine consignatione was the technical term expressing an act adulterating the truth of the contents, but leaving the sealings untouched. There is only few such cases reported in the Corpus iuris civilis. It is, indeed, due to the fact that the verity of a document was not easy to prove. On the other hand, especially officials of the central Rome or provinces could be otherwise disciplined. In the later period the affinity to fraus (fraud, imposition) caused those acts which were fraudulent in a variety of situations to be gradually seen also in terms of falsum.