로마법상 投下物·流出物 訴權(Actio de Deiectis et Effusis)에 관한 小考

초록

In ancient Rome, it was not uncommon for some objects to fall from high-rise communal housing to roads. In such cases, the actio to hold the habitator responsible for the drop and spill(actio de deiectis et effusis) was recognized by the edict of praetor. This is categorized into the quasi-delict with the case of iudex qui litem suam facit, and actio de positis et suspensis. In the event that something was dropped or spilled from the a high-rise room, and that damage was actually caused on the street, the habitator was responsible under this actio. Regarding property damage, the extent of damage is calculated and the double of the amount should be paid. And in the case of injury of a free man, treatment cost and the loss of income should be paid. When a free person gets to die, a certain amount of compensation was required. Therefore, it can be said that this actio is a kind of actio popularis, and actio poenalis. On the other hand, if a slave committed such an act, noxa deditio was recognized, and depending on the issue, a recourse could be recognized. Historically, there has been a lot of discussion about whether all quasi-delicts, including the actio de deiectis et effusis require culpa. Especially in the case of iudex qui litem suam facit, how to view its character is a difficult question. The French Civil Code of 1804 is an extension of the theory that culpa is required. However, there have been some persuasively arguing that all quasi-delicts are thought as strict libility. At the very least, it is reasonable to regard actio de deiectis et effusis as strict libility. Although the actio de deiectis et effusis has gradually disappeared, the provision regarding it still remains in the Austrian Civil Code (ABGB), and in the areas of assistant liability and strict liability, it influenced legislation in many countries to date.

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