罗马法中的四大民众发动程序

罗马法中的四大民众发动程序

Four Popular Actions in Roman Law

    期刊名称：《法学研究》
    期刊年份：
    作者：徐国栋
    单位：厦门大学法学院罗马法研究所
    中文关键词：民众诉讼;民众令状;人民控告;检举;众有利益
    英文关键词：Actio popularis;interdictum populars;Accusa;delatio;diffusive intersts
    中文摘要：
    包括民众诉权、民众令状、人民控告和检举四项制度的罗马法公益诉讼制度群，是现代公益诉讼制度的起源。四项制度的递嬗，展现了罗马诉讼法从民众主义到国家主义的发展史，由此揭示了在国家机器完善的现代条件下民众诉讼的存在依据问题。由于人民利益与官僚利益可能发生不一致，民众诉权仍有存在余地，但必须采用众有利益理论对原告资格制度进行改革，才能保证民众诉权良好地运作。
    英文摘要：
    Actio popularis, interdictum popularis, Accusa publica, and delatio were the four popular actions in Roman law, and the author believes that they are, as a whole, the origin of the institution of public interests action in modern time. The first three actions and the last one belong to different times, and the substitution of the latter for the former testified the developing history of Roman procedural law from populism to nationalism. The nomination of actio popularis disclosed its class nature, for it was designed as an action available to the members of an inferior class. This Actio includes five types, namely actio de sepulchro violato, actio de effuses et deiectis, actio de positis et suspensis, actio de feris, and actio de albo corrupto. They could be divided into two groups, the first four types belong to one group, and the last type belongs to the other. From the first group to the second, the element of public interests increases gradually. Interdictum popularis were issued mainly for answering the application of using the things for public use. This institution connected with the most early environment protection law. Finally it was mixed with actio popularis, then these two institutions unified into one institution. Accusa publica, as an element of Quaestio perpetuae, is a procedure for launching a suit. It was applicable to accuse a felony, and its abuse means moral risks. Initially, the scholars have confused it with actio popularis. Thanks to the monograph of Georg Bruns Die rmischen Popularklagen, scholars begin to be capable of distinguishing it from actio popularis. After that, actio popularis was considered an institution related mainly to civil procedure, to the contrary，Accusa publica is an institution related to criminal procedure. The institution of Delatio derived from Accusa publica, but was subject to Roman inquisitional criminal procedure of Cognitio period. Its aim is to assure that, the fiscus could get the properties that it has right to get. Because of the consolidation of Roman state bureaucracy, although delatoro can start a process, he is not qualified to be a plaintiff, and his role in the procedure is not anything but an informer.The four popular actions in Roman law are products of republican spirits of Roman people, but from A to Z, this spirit steps down. As to modern time, the would-be discrepancy between the interests of people and bureaucracy offers provides space for popular actions. In order to assure the good operation of popular actions, it is necessary to reform the qualification of plaintiff on the theory of diffusive interests. Keywords: Actio popularis, interdictum popularis, Accusa publica, delatio, diffusive interests
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