증여의 특이성과 로마법상의 증여－LEX CINCIA DE DONIS ET MUNERIBUS를 중심으로－

초록

The donation (donatio) is not understood per se, but is considered together with other social activities or values, due to factors that may be hidden behind it. That is why there is an unique approach in relation to the limitation of gifts. This can also be considered in the provisions of the Korean Civil Code or the recently enacted “The Improper Solicitation and Graft Act”. In ancient Rome, there was a peculiar law on donation, which was Lex Cincia de donis et muneribus (“lex Cincia”) enacted in B.C. 204. Although it is not handed down in its entirety and there has been some controversy, it is said that the contents of this law were generally: (1) as a attorney, a person who pleaded in court for another person is prohibited from receiving a gift; (2) a gift of more than a certain amount is prohibited; and (3) a donation should be performed in certain ways. Lex Cincia covered this broad range of the donation, but even if it is violated, the effect of the donation was not denied if the gift is completed. That is to say, lex Cincia did not deny the private effect of any action against it, but functioned only as a right of protest (lex imperfecta). Lex Cincia is more likely to emphasize the function to give the chance to “ponder” for a donator. And it is understandable that the lex Cincia only gave such an effect when considering the social role of the donation in the Roman society and the tendency of the liberal Romans. The law can be explained based on the peculiar period of the post-Punic Wars, and it shows great skepticism of the Roman about the donation as well. Moreover, it seems that there was also the intention to protect the donator. This study examined one aspect of the limitation of donations. It will be left as a future task to look at the other ways of restraints of the donation in the Roman and the subsequent history.

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