로마법상 侵辱 불법행위에 관한 소고－고전기법상 자유인을 직접 대상으로 하는 侵辱 사례를 중심으로－

The Korean Civil Code Art. 751(1) provides the compensation for immaterial damage in case of the physical injuries, infringement of a person’s liberty or reputation et cetera. This paper deals with iniuria, one of the delicts in Roman law, in contemplation of furthering the historical understanding of the Korean Civil Code Art. 751(1). The historical origin of actio iniuriarum in Roman law is traced to the Twelve Tables (XII.Tab.8.2-4) and iniuria implied then a lesser physical injury or assault to the body of a man. The legal effect was paying a fixed sum of money. Around the turn of the third to the second century B. C., there were significant changes. The praetors introduced under the law of formulary civil procedure and with the social changes in view actio iniuriarum that covered various forms of injury including assaults, slander, stalking and so on. Even preventing a person from using his own property, treating a person as a debtor and infringement of freedom of general conduct had been sanctioned as iniuria. Dolus malus was required for all types of iniuria, but there is a dispute over whether the animus iniuriandi, the intention to insult was required or not. In the proceeding in iure, the victim had to specify the injury he suffered and present his own evaluation amount before the praetor, who was, however, in his taxatio not bound to it, and then in the proceeding apud iudicem the iudex judged whether the offence was committed and fixed the amount of compensation at his discretion ex bono et aequo within the limit of the praetorian taxatio, unless the injury was serious (atrox) for which the praetor normally fixed the amount. It should be noted that the compensation was for immaterial damage not for material damage, because the rule liberum corpus nullam recipit aestimationem, i.e. a body of a free man is not subject to valuation, was applied under Roman law. The actio iniuriarum was an actio poenalis incurring infamia as well as an actio vindictam spirans that was inheritable on both sides of the parties unless an action has been instituted.