Praetorsky sobi zakhist Volodinnya. Especially for the Praetorian Zachist in Roman law. Introduction at the Volodinnya
2. Especially for the praetor zakhist
Having summoned the Crimea, the praetors, shriveled by the power (so we call imperium), slapped some zahists with special orders, with their insane (against the formula I’ll call) uninterrupted orders (wishing for an hour and then the praetors in deaky moods switched to the path of mental orders). Especially for the praetor's zahistu - the praetor's prerogatives, yakі vіn vikoristav change the flow of the process and vikonnanny of the court's decision. One sees such a cause for the praetor's zakhist:
1. Restitution (Restitutio in integrum) - renewal at the cob camp; annulling the legacy of singing. For example, a person, as if she knew a significant shkodi to please, laid down and injecting threats or deceit, could take restitution from the praetor (so that the court should please that turn of the main camp of the sides at the exit camps). In especially important cases, the praetor, having allowed the deprivation, came to legal consequences (for example, raising the provisions of the agreement) through those who recognized the guilt of unfair stosuvannya in such cases of outrageous norms of law. I will decide about such a renewal of the massive camp and the restitution of the praetor vindicated after the frontal closure of the situation on the right (causa cognita). So, for example, a person for up to 25 years, as if she laid down an invisible pleasing for herself (whether formally legal), she could take away the praetor’s permission not to call for that pleasing (the praetor gave such a benefit, calling for the inadequacy of the individual). So the person herself, as if she knew a significant shkodi, please, laid down (with a splash of threats or deceit, then), she could also take restitution from the praetor just fine. Substantiate restitution boules more accurately appointed by classical jurisprudence. mind two: the presence of a bastard is fair.
The presence of shkodi (laesio) has come to mind on the material and moral plane. Golovnya, schob zbityki, the chiefs of the individuals in the wake of the various furnishings, could not be corrected by the traditional ship's orders. Well, as far as a fair plea (justa causa), then there are six such pleas of the Roman dzherel: lack of access to the 25th century, threat, deceit, pardon, extermination of entitlement, that there is little time for the conduct of the process, a special day. In the formulary process, the procedure for removing restitution could be made up of two parts: for example, the magistrate, on the other hand, corrected the omissions of the terms for filing a call, and then looked at the renewed call in the order of magnitude. Through the years of resentment, the parts have come together in one virobnitstvo. The order of the terms of the ship’s review of the letters of the terms of the term of rebuking the praetor in the state service, then in one fate, pіznіshe Justinіan zbіlshiv lines to chotirokh roki. The effect of restitution is small on both sides - they were inspired by a lot of legal advice.
2. Introduction at the Volodinnya - a person, as you can play on the right, be introduced at the Volodinnya with a spiky rhyme, in order to ensure the safety of the lane or the court decision. Transfer from the Volodin - the order of the praetor to take from the Volodin the yoke mayo, what to lay on the other, goiter of the individual
3. Praetor's stipulation (stipulatio) - a kind of verbal favor, until the end of which side they succumbed to the praetor at the process. Stipulation is a verbal agreement, which fits between the parties with the praetor's primus. Such a primus zdіysnyuvavsya at that, schob s additional contract to protect the right of the creditor. For the primus of the borzhnik, before laying down such an agreement, the praetor vikoristav must take the bribe, forcing the creditor from the volodinnya of the borzhnik’s mine, then.
4. Interdictum (interdictum) - the form of defending violations of rights is simplified, bypassing the court procedure. Praetor's interdict, whether by defending or punishing the violator of the law (or both sides of the dispute)
That was the name of the order of the praetor about negainnya pripinennya yakihos diy, scho destroy the order and interests of the hulks. On the back, the praetor gave interdicts after investigating the facts, on which the person was sent, who had turned to the new one (for example, the huge man came with a skarga to those that the other huge man had voluntarily driven him out of the land plot, who had changed with the volodin the peasant land, and the other forcibly driving him out of the village of the peasant, and after the re-verification, slamming the zahist). The shards at the time of the factual situation were rightly altered until the interdict of Prokhachev, the interdict of the categorical and insane orders. In the meantime, with the greater number of rights, the praetor began to give interdicts without rechecking the facts, like a mental order (“to confirm the facts, where the applicant is asked to go”), and even interdicts from the procedural side became similar call. The most important category of interdicts is Volodarsk interdicts. Back to back, the interdict was categorical and insane orders, the shards of factual arrangements were corrected to the point of prokhachev’s interdict.
Interdicty buli trioma views:
· Zaboronnі - fence sing vіdnoshnja chi behavior;
· Vіdnovnі - turn whether it's a speech or a reminder of a random life;
· Presentation – presentation of the document of an individual.
Having added a piece of land at once from a house. Nezabar, however, the right sergeant of the dealer appeared and it was stated that the seller was not a ruler and did not, after all, have the right to sell yoga. The housekeeper that she bought, having waited a while to turn it over to the lawful sergeant for a wash, as the sack of the housekeeper inspected the yogo for repairs and morning the house. Chi Gruntovna is so powerful? What moment did the purchaser after the established term come to the government for a long time?
Vimoga Gruntovna. Tsej vpadok lie down to vіdkatsії - vlasnik hung vіdkatsiyny poses - tobto. the poses of the vlasnik, which is not Volodya, to the vlasnik of the non-vlasnik about the turn of the lane. At the same time, the sergeant can help blow the money for repairs that morning house.
It was reportedly written in the Digestakh of Justinian (book 6, title I - about the vindication of speeches).
1. As a sergeant until the litis contestatio, having made a vitrati on the river, as if to become an object of vimogy, then, by virtue of the exception about the evil namir, you should take it to the respect of vitrati, as if positively resting on your speech, not turning your vitrati.
2. A resident at someone else's booth arguing (his) window on that door, and through the river vlasnik he opened the booth. I’ll ask: what can the one who wakes up (open that door), wind up? Vidpoviv: maybe. For those who are tied up with someone else's everyday life, stand up to the next day, until they are left to come, but it is well chosen - at once they turn in their own camp.
In such a rite, the vitrati, incurred by the summed sergeant on the river, were given to him by the sergeant, as if the vitrati were necessary for the preservation of speech, or, accepting, zbіshuvali the master's appurtenance of speech (tobto vitrati, even insanely necessary, ale corny). Chodo witrat, made by a summed sack “for satisfaction” (impensae voluptuariae) or a storehouse item of luxury, a summed sack was given the right, when turning a speech, to add his deposit to the river, yakshcho, sensible, perhaps without shkod for speech (for example, . P.).
3. Vіdpovіdach mіg zatrimati vydachu speech, the docks of the posyvach-vlasnik did not vіdshkoduє yomu nalezhnoї sumi vitrat, incurred on the river (the so-called ius retentionis, the right of utrimannya speech, as it was in front of the exception against the indicative call).
From the power of giving the house to the authorities for the old age
As if by a protractor appointed, transferred to the law, the term of poses about speech was not presented, then the docility of the vimagala, so that the camp of the sumly sack had a residual reinforcement, so that there would be no further shock in the state of the state on the ground, the demand for speech could be the power of the mother. Provodіvshi rіchchyu protyag installed (long-standing) term, vlasnik turned into vlasnik. In the XII epoch, the tables of the term “volodinnya” were introduced even shorter (two roki for land plots, one roki for reshti speeches). In the Provincial Edict, a different kind of prescription, longi temporis praescriptio, appeared, which was supposed to expand the prescription by the subject - on the borders, according to the object - on the provincial lands. The terms of new antiquity were more trivial: 10 years, as if the one who became old for that person, who threatens the loss of rights, to live in one province (inter praesentes, the world is present), yakscho two individuals live in different provinces (inter absentes, between daily). Justinian ob'ednav obydva tsі see prescription (usucapio and longi temporis praesc riptio). Wash away the rights of power for a prescription in the end of the pouch were designated as follows:
a) necessary volodinnya rіchchu
b) before that - sumlіnne
c) volodinnya is guilty of a mother of lawful imposition (iustus titulus), as she could herself bring the rights of power to the power, yakbi didn’t make someone like a call of reshkoda, for example, vodіnnya may be a legal imposition of purchase and sale and the transmission of speech will come, yakі didn’t break a purchase by a vlasnik to one who the seller himself does not have the right to power in the river.
d) Volodinnya can continue how longi temporis praescriptio - 3 roki, how unruly - 10 or 20 roki (like bulo for longi temporis praescriptio)
Literature
1. Bartoszek M. Roman law (understandings, terms, definitions). - M., 1984.
2. Drozhzhin U. Justice in Ancient Rome // Vіdomosti of the Verkhovna Rada. - 1994. - No. 10.
3. Kosarev A.I. Roman right. - M: Legal. lit., 1986.
4. Novitsky I.B. Roman law. Especially for the praetor zakhist. - M: "TEIS", 1996.
5. Omelchenko O.O. Fundamentals of Roman law. - M., 1994.
6. Peretersky I.S. Digesti of Justinian: Selected Fragments / Transl. i straight. I.S. Peretersky. - M., 1984.
7. Salogubova E.V. Roman gromadyansky process. - M., 2000.
8. Current research on Roman law / Ed. B.C. Nersesyants. -M., 1987.
9. Chernilovsky Z.M. Roman private law: Elementary course. - M.: Lawyer, 2000.
Kosarev A.I. Roman right. - M., 1986. P.40.
Omelchenko O.O. Fundamentals of Roman law. - M., 1994. P.107.
Modern studies of Roman law / Ed. B.C. Nersesyants. M., 1987.
Salogubova O.V. Roman gromadyansky process.
Novitsky І.B. Roman law. Especially for the praetor zakhist. - M: "TEIS", 1996.
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І priming decisions by courts of criminal jurisdiction and arbitral tribunals, in their own right, positively signify the effectiveness of justice in civil rights. To that, I will call the institute far away from the civil process of Russia, to allow the realization of the main and most significant goals of civil judiciary - the protection of the rights and legally protected interests of the people.
Especially in favor of the praetor's zahistu - tse zabі, if the praetor could instantly zastosuvat by virtue of his imperium (great power) without a judicial review, if they were on the basis of additional additions, polіpshennya, or the adoption of a short civil process, or great legal zabіv.
Prior to such special benefits lay: interdiction, pretorian stipulation, introduction at the volodin, restitution.
Interdicty (interdicta) . The order from the great call order caused a special interdiction. Interdicti - secure the arrogant defense of private rights. Interdict - the order to instigate a sing-song chi utrimatisya in a sing-song dії.
At a long time ago, the magistrate, having seen the order, after the investigation, do it. To that interdict bv an impeccable order. At the guilty right, the interdict was of a wise character, the praetor’s shards bouldered to change their minds at the correctness of the scarga. With the help of an interdict, the praetor immediately sent the right to the court for further evidence.
The person is guilty of negainoly swearing at the interdict. It was possible, without walking in front of the praetor, to rebuke the interdict, waiting for the confession of the court. At the court's review, the interdict either confirmed, and even from the mental guilt, becoming an insane order, or not confirmed, which led to the truth of the confession.
This person was unique as a praetor, not wanting to recognize the arbitrator, and did not reproach the interdict, pozivach viklikav yogo ukladannya contract with the one who vydpovidach to appear wrong, vin to pay a fine, pozivach also to pay a fine for wrongfulness.
See the Interdictives.
1. a) zaboronnі - like singing persons, yakіs dії were fenced,
b) vodnovlyuvalni - for the help of those, it was punished to restore a large camp,
c) presentation - with the help of some of them, it was possible to present new vodnosin.
2. Interdicts about the morning of the Volodin and Interdicts for the restoration of the damaged Volodin.
3. Interdicts can be forgiven and subdued. Forgive me for all introductory interdicts. Defensive interdictions can be forgiven and subdued. Under the influence of the interdicts, the praetor has hindered the change of essential contributions to both sides.
Praetor's regulations (prescribedio) - tse verbal agreements, laid down by the parties at the order of the praetor or judge. The metaphor of pretorian stipulations is a defense of such interests of the party, as they are insufficiently protected by other legal protections. There were a few examples of praetor stipulations: 1. stipulations, which served to regulate the correct conduct of the dispute, 2. stipulations, which were embarrassing, like goiters, they were laying individuals, like special goiters, for example, opikun with a safe method
Introduction at the Volodinnya (missioinpossessionem) . The praetor, having allowed the creditors to install the boarman's volodinny with the same part of that lane, as the creditors could not in any other way smuggle the borzhnik to vikonate their own needs. There is especially little space for vipadkah, if the borzhnik was on a daily basis, not being especially independent, not wanting to stand before the court, or, having filed a bail, not having victoriously judged the decision of the court voluntarily. The lender can immediately sell mine, and save yoga for an hour.
The introduction at the Volodynnya could have been the place for a lot of speeches from the whole lane of the borzhnik.
The introduction of the Volodin was stagnant ex primo (forward) or ex secundo decreto (on the basis of another decree).
For example, as if the lord's unbalance created a threat to the courts. For scarga to the emergency camp of the living life, the vlasnik zmushuvav give stipulyatsii, afterward, which blamed the civil viability of wind blowing, it is possible to beat. On vіdmova date stipulyatsiyu next introduction at the volunteer. The introduction at the Volodinnya created the mind for repairs and the possibility of increasing the loss and compensation for losses. And more and more it was called to repair the vice from the method of taking the guarantee from the form of stipulation.
Yakschko Vlasnik Dіlaanka, Vіd Yakoa seen the wrongness, Yak І Ranіsh Vіdovsya datasy Steypulyatsiya, SlordvavAn introduced from Volodynne to the pіdtsti of another decree, Vnaslіdd to Sousіd by putting a prestormist Vlasnik Usієї, and after two Rockies (Thermian Kompanno Davosti for Head Maja yogo for a long time Volodinnya for full power.
Restitution (restitutioinintegrum) . Restitution - Reinforcement in the colossal camp. In classical law, the term means especially handing the magistrate in civil blue, for which magistrate is above the force of law, but in the basis of his court (arbitrium), looking for justice, recognizing the number of civilians. (Butt - a contract of purchase and sale).
Clean up the restitution: 1. bribes, 2. legal support (iusta causa), 3. the victim’s own statement.
Beats can be both mainstream and non-mainstream. Before the rightful conditions, the stagnation of restitution is brought to light: like a person, like she did not reach the 25th century, she knew after all her wild be-like shkodi; like the pleasing of the bula was blamed under the infusion of primus, violence, fear; for the sake of pleasing it was laid in the wake of a pardon; evil mind; the presence of the victim.
In due time, the prohannya about restitution was respected by the presentation of the classic right to stretch 1 day from the day of the appearance of shkod, and for the right of Justinian - the stretch of 4 years.
Classical law did not know the defamation of court decisions in the sense of the word. The party, dissatisfied with the judicial decisions, could ask the praetor for restitution, apparently to which all the consequences of such a decision were annulled.
As we know, the creation, transformation and stosuvannya of formulaic calls were taken over by the competence of the praetors, by the sphere of their jurisdiction. Prote praetor instantly vyrishuvati private superechki as if he saw calls, tobto. a court report about the presence of chi in the position of a pozivacha of the supreme law, and even more for an additional administrative mandate, rooting for your empire, without intermediary administrative power. Here we will look at two such special defenses for the defense of subjective rights - interdict and restitution (reinstatement to the colossal camp).
Interdict
Interdict (interdictum) - the order of the ship's magistrate cum imperio (praetor of the province's navigator), accepting one side of the court for clearer consideration of the dispute. The magistrate ordered either to inflict a diyu (for example, everyday life, that you care about the passage of a huge road), or, on the contrary, zdiisniti diyu (introduce the rupture of water, present an object, etc.). In such a manner, it is a direct administrative act, which is often even more effective through those that are already vindictive. And with a swedish interdict buv z offensive reasons:
- 1) decision by the praetor without hearing the certificates;
- 2) procedural actions during the interdict did not pass two stages;
- 3) giving his order, the praetor did not finish the letter about the law; in the interdict variability, the meaning is less than a fact;
- 4) the republican calendar was close to 110 days, if the praetor failed to chant three sacred words: do- "I give [poses]", dico- “I appoint [the day of judgment]”, addico- “I appoint [a judge]”; so called dies nefasti, fenced (that is not present) days, if it was impossible to commit, call. As far as the interdictives, the stench did not vibrate the voice of the sacred words, and that could be seen by the praetor any day.
On the back, the subject of the interdicts was the speeches of the divine right-bearer and the bulky speeches. In the course of the year, their profits were duly assessed in the sphere of private super-cheks, especially those of the main ones. Come on, zavdyaki interdicts in Roman law, the institution of volodinnia has been formed (do not stray with the institution of authority).
The reason for seeing the interdict was the skarga of a private individual; as if the praetor knew what was true and what was true, he saw his order.
Meta interdict - reshuffle the change of the actual state and quickly restore order, without going into the final stage of the study of law in detail.
Numerіy Negіdіy buv legionnaire i bv vіdsutnіy kіlka rokіv. Turning back home, revealing that Yogo Susid Aulus Agerius, having fenced in between their mothers. Numbers of upevneniya, that the right boundary should not pass there, de sporudzheno parkan, so Aulus saw a piece of land, which, by right of faith, belonged to you, Numeria. I don’t think long and don’t enter into super-girls from the suside, Numeriy begins to sort out the fence. Aulus Agerius, in his honor, is not fit to ask the praetor to fence the Numbers of self-righteousness. The praetor sees an interdict, zastosovuvat violence at the top of the superechki, tobto, in fact, punishing Numeria to actually encroach on the backyard of the earth. Nutrition: how will the praetor's opinion be fed in this interdict verse - about those on whose feet in the right direction, who is legally the head of the line? But only about those who are quiet, who are contending, in fact, mowing the earth up to the present moment?
The interdict was superbly effective, if it was supported by you. At this moment, the super-chka was fluttering quickly, on the vіdmіnu vіd call provadzhennya. Well, as a matter of fact, you should be sure of your rightness, and you won’t give in to an interdict. In this way, the interdict became more than an antecedent, after which it followed a later lead-in, as it could be inspiring and collapsing at the right side, if the poses were made without a forward interdict stage.
When the order was ordered, two variants of development were given (Gaj., 4. 141). In the first variant, you have recited the interdict directly at the praetor and vimahaw put together a call formula that recognizes the judge for an ear of a super-cob about law. Such a possibility to youmu was given and on the right swelled the nature of the calling provodzhennya, with which the formula of the call is small arbitrary character. As if judging by establishing the right on the parties to give, the interdict of the contrary did not appear. As a matter of fact, the right to speak was confirmed, and in court, having won the reverse of the speech, in the most times awarded the right to pay the interest. With such a development, the sum of the vidpovidachevi was more beautifully pidkoritis, more like a wine, and now, judging dodatkovo yogo to a fine, the sum of which in that moment was primalized by a positive oath. Similar behavior was equated to an evil spirit. Such a method was called agere per formulam arbitrariam, children for additional arbitrarial formulas.
In another variant, the execution of the praetor was unique, without explicitly contesting the order, and not subordinating the order. Pozivach at the time of viklikav vіdpovіdach before laying the sponsorship - to the contract, from which the skin of the zі storіn obіtsya to pay a fine, as if the hour of a remote court review won't be right. The amount of the fine was precisely indicated at the oath of the positive. Such a method is called agere per sponsor. With this variant, the side did not lose more on the right, and still pay the fine.
The global typology of interviews includes three categories.
- 1. Defensive interdicts, interdicta prohibitoria. The stench hindered one or both sides, which are being litigated, the self-government authorities respect the underties. Ring out about the rapist’s destruction of the current volodin. At the formula of such an interdict, the praetor accurately indicates that the same divinity should be charged with repentance. ...facias- "so that you are not timid ...", ne... mitteas- “Schab you didn’t know ...”), otherwise, why the wine itself is not guilty of pereskodzhati skarzhnik. The fence is expressed by words vim fieri veto- "I hedge against zastosovuvat violence", de vis vikoristovuєtsya at razshiryuvalnomu sensi and not lead to direct violence.
- 2. Introductory interdicts, interdicta restitutoria, they were an order about the renewal of some speeches at the їhnі kolishny vyglyadі (for example, vіdnoviti zruynovanuyu budіvlyu, zіpsovaniya aqueduct chi road) or about їхнє їхнє їхнє їхнє їхнє у їхнє їхнє їхнє їхнє їхнє їхнє їхнє їхнє їні їх їх мієєєі, yаky bуv їх svobodnyh. Order hanging with a word restituas- "You musish remembrance."
- 3. Pred'yavnі interdicti, interdicta exhibitoria, they punished the court to present it to the praetor or to the court (for example, a tablet with the text of such a document) or to a specific person (for example, a son of a son, a slave, a free person).
Such an interdict was often victorious in order to make the order submissive by presenting it to the magistrate or to the court; From the praetor’s door, about seeing such a mandate, it was a moment to turn around, zatsіkavleniy at the zmіsti of the document, navіt a slave, who suspects that the lord died, having let yogo at the command to freedom, and to bring down the fall. Order hanging with a word exhibeas eit (earn)- "ti maєsh present yoga (її)". Pred'avnі іnterdicti vіdznyalis vіd vіdnovlyuvalnyh tim, shcho stench not vimagali vіd vіdpovіdach turn rіch vіdіnnya аbo lyudinu vlad pozyvachu - іslosya іїнє їхнє про'явлення. Offenses and types of interdictives were also called decrees, on vіdmіnu vіd interdicta prohibitoria, they were interdicts (literally "fences") in the narrow meaning of the word (div.: Gaj., 4. 139-140).
Formulas of interdictives, like formulas of calls, were introduced before the text of the Praetor's Edict.
Interdictions played an even more important role in the history of Roman law. Zakrema, having taken the development of the Volodinnya Institute at his own expense, and also initiated the reform of the recessionary and outpost law. In the post-classical period, however, the intermediary between the interdicts and the call was gradually erased.
The praetor, with the sovereignty of the supreme power, having the right to live in wild entries and without a judicial review:
1) interdicta (interdicta) - obov'yazkovy before vikonannya order of the praetor to instigate a singing action to reduce the speed of the singing action. The interdicts were delivered by the defenders not against the master of speech, but against third parties, as if they were aiming at the Volodinnya, which I can sum up. The party, having rejected the interdict, reproached negainoly to you, did not quarrel with the findings of the new facts. Prohannya about seeing an interdict could come out on one side, in a moment of savagery and to the skarzhnik, and to the torpedo.
See the interdicts:
– unilateral and bilateral;
- indovlyuvalni (impacted by turning a person, be it a speech) and pre-obvious (impacted by a tribute, be it a person, a worker of a member of this, a speech of a document);
- for the Volodinnya, it is unruly, and for the Volodinnya, with rough speeches. The interdict of defense of non-violence will be directed at those, so that they can really secure the fire and guarantee that third-party encroachments on the water of the soul (so that the third individuals do not tear up the yoga house, do not move into the houses, etc.). An interdict from the defense of the rough speeches of directing to the security of the interests of the main sergeant in terms of reaching other heights (the rough speeches, in fact, could easily come out of the volodinnya: giving someone a horse for a day, a slave, to carry the load thinly). In these vipadkahs, the superchicks vibrated arithmetically: whoever was the greatest trivality for an hour stretching fate, that one, having entered into the main її sack, and the river creaked after him.
2) Restitution(restitutio in integrum) - renewal of the general position, a way to protect against the stosuvannya of the law, for example:
When laying the invisible, please special, as it did not reach 25 years (the praetor took to respect the inadequacy of the individual),
When skipping a term for good reasons,
With mercy at the process,
At times, please please under the influx of threats or deceit,
At the time of the arrangement, please see any person who knows a significant shkodi.
The restitution helped to force the fact, which brought the juridical innocence to a clear camp, and invigorated the colossal camp of these vidnosins. When її zastosuvannі against the court's decision, it was out of court, and the process was reopened. Restitution stagnated like a vine.
3) Public poses (actio publiciana), foundations on fiction. Zahist believed in the mental replacement of the real, which is defended by the total freedom of the category of authority. The praetor, introducing a fictitious omission, that the old term had passed by, and the sergeant-major, having omitted the full legal defense of any encroachment on yoga river. The praetor having closed the speech, which became the subject of a claim, at the main of the summed nabuvach (in bonis), the stars of the new for their own right became called the praetor's authority, or "bonitary volodin".
4) praetor stipulation(stipulationes praetoriae) was expressed by the primus praetor before the verbal agreement between the parties. Such a primus zdіysnyuvavsya at that, schob s additional contract to protect the right of the creditor. For the primus of the borzhnik, before laying down such an agreement, the praetor vikoristav must take the bribe, forcing the creditor from the volodinnya of the borzhnik’s mine, then.
5) introduction at the Volodinnya(missio in possessionem) - the most important way to win a court decision, which is the case when the praetor is specially mandated by introducing a rebate to the court process from the volodynnya of the barman;
Call prescription
The hour is the primary factor in the right to defend the rights. Vono є pіdstavoy vyniknennya, chіni chi pripinenny pravovidnosin. Particularity - skipping the hour established by law, vvazhavsya such that repaying the material right in the right way, and not in the marginalized looking right to help restore your right.
Call prescription- the maximum term, by the stretch of which a person is competent, the right is violated, could vimagati a look and call.
The calling prescription was fixed at 5 tbsp. not. Until what hour the Romans were taught only legal terms for the presentation of calls!
Legal terms- terms inserted into the following calls:
- Pretorsk - 1 river;
- edilski, at the link with the failure of the purchased speech - 6 months;
- about recession - 5 years.
Prydbalna prescription- as in fact, in fact, the camp is running out of the singing hour, there may be legal consequences that exclaim from the new one, for example, giving the sergeant the right to power.
Extinguished prescription- a declaration about the poses, for which the deacons have subjective rights to explore less than the boundaries of the designated term and apply after the end.
See the extinguished prescription:
- Povna, if in general all the money was repaid;
- Chastkov, if it was important to repay, for example, the right to vimagati penalties for non-violation, but the right to vimagati vikonanny was saved.
Extinguished prescription is not small call, scho shriek іz spadkovogo law.
Unmemorable hour- Intermission of an hour, in which people, as if they live on a given hour, could not establish the cob of this eligibility. Sound the unmemorable hours came to the third generation.
The call of prescription means the redemption of the possibility of the procedural rights of the defendant after the fact that during the singing hour such a defender would not be interested in the person.
The day of calling prescription did not expand on exceptions (exceptions can be declared only if poses are presented), the crime of vipadkiv, if the person could, by reason of her right to present and poses, the exception and violated the right to present the poses.
The beginning of the call statute of limitations was restored due to the vindication of the call claim:
- With the right of authority and other rights in speech - from the moment of destruction of the panuvannya over the river;
- in case of goiters, do not rob the chogos - if the goiters are covered, the subject has made a deed, opposite to the accepted binding
- in case of goiters, it is possible to grow up - if the opportunity arose to negainoly vimagati vykonannya obov'yazku.
The banal term of the call prescription was established by Justinian at 30 years, for the church of that blessed establishments - 40 years.
The currents of the past were interrupted: I will call for a presentation, I could be recognized as a goiter by a special person. The break of call prescription led to the fact that an hour, having passed, was not secured in the lines of call prescription; With a stretch of time, it began anew.
Perebіg call prescription moment but timchasovo pinned. Suspension of calling prescription meant that the time of the temporal time was due for any reason, for example, through incompetent individuals or legal reshkod for presentation, I will call, for example, before compiling an inventory of the recession lane. Usunennya tsikh pidstav was reminded by the prolongation of the call of prescription, and an hour, having passed before the accusation, was read into the exalted term of prescription.
By the order of the formulary process, your development is taken away by another way of defending the rights - the praetorian defender, which takes his cob from the praetorian right.
The essence and significance of the praetor's zahist was revealed, nasampered, in its effectiveness at a glance, the stosuvan's swedishness: the zahist was initiated without intermediary by the magistrate. Tilki yakshcho tsili praetorskoy zahist did not reach, initsiyuvavsya process.
Among the main reasons for the praetorian zakhist are traditionally seen:
1. Interdiction.
2. Restitution.
3. Stipulation.
4. Introduction at the Volodin.
1. Interdict (interdictum or decretum ). Being the fence of the praetor, he was responsible for destroying the right of the individual, as he turned to the new one for the zakhist. Especially the interdict and those who are guilty of victories without a call.
We saw the following interdicts:
a) fallow type of object:
1) zaboronny, prohibitorny (prohibitoria) - an interdict, a kind of punishing the vіdpovіda utrimatisya in the form of a song;
2) restitutoria (restitutoria)- an interdict, which, having ordered the return, turn the river to him;
3) pred'yavny, eksgibіtorny (exhibitoria)- an interdict, which punished the voucher to present to the praetor a verse of speech that would be good for him.
b) fallow type recognition:
1) simple (simpl i cia)- an interdict, less brutal to one side of the dispute;
2) bilateral (duplicia)- interdict, savagery to both sides.
2. Restitution (restitutio in i ntegrum)
This term signified the turning of the current legal situation to the primary position.
A glance at the praetor’s zastostu zastosuvannya zastosuvannyu vpadkah, if the praetor vvazhav, scho formally and zastosuvannya zastosuvannya norms of law in tsіy, song situation no fault of zastosovuvatysya, oskolki such zastosuvannya would be unfair.
Restitution could have taken place, for example, as one of the sides of the favor was not full, or as the favor itself was placed under the influx of insecurity.
Most often, restitution was carried out on the basis of a fictitious summons, for example, for example, having forgiven the borg arbitrarily and without prejudice, then assigning him the right to file fictitious poses for his own defense; fіktіya fіktіya іn razі pogalat tsiomu, shcho praetor allowing pozivachu vozvat pozovі, scho nibi borgo goitre yazannya still repaid.
3. Stipulation (stipulatio pretoria) being a variety of verbal contracts, it appeared in the presence of the praetor that the greed of the praetor was greedy.
In connection with the cym, there were different types of stipulations, the most characteristic of these boules:
- repromissi o nes - such a standardization was manifested in a simple obіtsyantsі vіdpovіdach pozyvachu z drive vikonannya first, whether or not to the melancholy of another;
- satisdati o nes - such stipulations were observed in the presence of the guarantor of the vikonanny, the guarantor.
Offenses and differences were called zagalom cauti o nes .
From the other side, T.G. Vasilyeva propagates one more classification of stipulations. Vaughn writes:
“Indeed, according to the subject of the agreement, the stipulation could be:
At times, like a borzhnik, having taken vin goiter, you have to pay a penny sum of pennies to the creditor. The borzhnik immediately pays the amount of money for the purchase (contract of purchase and sale), rent (rent), position, payment for the purchase and other. stipulatio certae creditae);
In a vipadku, as the subject of the contract were individually assigned speeches or a large number of sloping speeches ( stipulation certae rei);
In other ways, if the borzhnik goiter is growing, the creditor’s grudge is growing ( stipulation incerti)».
4. Introduction to Volodinnya (missio in possessi o nem)
And here it was said, for example, about "the introduction of a recession in the Volodymyr", that is. about goloshennya yogo spadkoymetsom (as if talking about the sphere of spadkovy law); yak designating I.A. Pokrovsky, "the praetor on a prohannya prohacha to introduce yoga at the Volodinnya with the help of a chimney rich river."
§ 6. Extraordinary process ( cognitio extra ordinem)
Already in the classical period, such a form of the process spawned with the formulary process, and in the postclassical period, after the new expression of the formulary process, it reached its maturity and widespread zastosuvannya.
On the other hand, such a form of the process was virishuvati superechki, which was blamed among the subjects of not private, but public law. Well, in the era of the sickle (31 BC - 14 AD), an extraordinary process began to stagnate and to the point of vyplyvayut і from private law.
The main signs of an extraordinary process are:
1) One day of the procedure- two-stage virobnitstvo, typical for legal and formulary processes, and from the installation of an extraordinary thing happened in the past. The whole process was taken from the beginning to completion before the judge himself, who was assigned and controlled by the power.
2) Discretion of the court in the process - so judging by the help of the choice of the method of investigating the situation, you can prove it with the help.
3) Possibility of absenteeism on the view of the front view of the processes at the time of the presence of the view on the sight of the shoes of the shoes. Sufficient knowledge was given on the cob to the process of explaining about it. Yogo's failure to appear was a pereskodoy to look right.
4) Possibility of oskarzhennya decision - The main feature was the possibility of oskarzhennia unlawful and ungrounded decision of the court to the greater authorities of the state (the lancet oskarzhenya ending with a glance of the right princeps, which would be the highest judicial authority).
5) Availability of different methods of award judging now the goiter is to take the side that you have played, not only to pay the penny sum of the side, that you have played, but also, the natomist, the goiter of the one who has done the program, blowing, for example, to reduce him to the river of nature, similar and equal .
6) Possibility of primus vikonnannya solution analyzes of the period have new plantings - apparitores - yaki, at the time, the side of the court’s decision, which was not victorious, zmushuvali її vikonati yogo. In such a rank, here we are talking about the “ships assigned” to Ancient Rome.
WISNOVOK
At the same time, with the development of the main and special non-main wars, calling for the economic and political development of the Roman state, the system of Roman law was actively formed.
Being the result of the creativity of rich generations of Roman jurists, it brought its effectiveness and adopted modern European civil law. In essence, Roman law is the basis, the foundation, for which modern legal science is being formed and developed, in order to bring the insolent need for education, understanding, and constant recognition of new aspects in the classical postulates of Roman law. Like listening to the vіdomy pre-revolutionary teachings, professor of Roman law G.F. Dormidontiv, "only dzherela one of the Roman law give the opportunity to walk through in detail the steps to develop other institutions of law that are common to all mankind."
The development of public law in modern Russia, adopting changes to the civil code of the Russian Federation, with obvious evidence, showed that the potential of Roman private law is far from being exhausted, but, as before, it is more relevant as a model of legal regulation of private law laws.
List of victorious literature
1. Bartoszek M. Rimske right: (Understanding, terms, definition). M.: Yurid.lit., 1989. - 448 p.
2. Vasilyeva T. G., Pashaeva O.M. Roman right. Lecture notes / T.G. Vasil'eva, O.M. Pashayev. - M., Vishcha Osvita. - 160 s.
3. Grimm D.D. Lectures on the dogmas of Roman law. M.: Zertsalo, 2003. - 496 p.
4. Doshchov D.V. Roman private law. M.: Infra-M - Norma, 2003. - 784 p.
5. Dormidontiv, G.F. Roman law system. Zagalnaya part. - Kazan, 1910.
6. Novitsky I.B. Fundamentals of Roman civil law. A handyman for cherries. lectures. - M.: Vidavnitstvo MIRROR, 2000. - 400 p.
7. Monuments of Roman law: Law 12 tables. Guy Institute. Digest of Justinian. - M: 3ertsalo, 1998. - 608 p.
8. Pokrovsky I.A. History of Roman law. - St. Petersburg: "Litniy Sad", 1998. - 560 p.
9. Roman private law. For red. Novitsky I.B., Peretersky I.S. M: Jurisprudence, 2005. - 448 p.
10. Sanfilippo C. The course of Roman private law. M: BEK, 2002. - 400 p.
11. Suvorov N.S. About legal principles of Roman law. M.: Statut, 2000 - 229 p.
12. Arangio Ruiz V. Storia del diritto romano. - Jovene, 1984. - 456 p.
13. Corbino A. Diritto privato romano. - Cedam, 2012. - 832 p.
14. Guarino A. Diritto privato romano. - Jovene, 2001. - 1110 p.
15. Corpus iuris civilis. URL: http://www.thelatinlibrary.com/justinian.html
The recession, which after thirty days from the day of the declaration of the recession at the presence of a notary and the evidence of the description of the recessionary lane and the end of the yogic folding at the next sixty days, after the borg, the recession is less in the middle of the description of the recession (intra viti)
Spadkov's mass was angry with the mine recession only after paying the borg of the recession.
Yakshcho creditor vіd vіd one s spіvporučnіkіv povnu sumu zobov'yazannya, tsey guarantor of the moment vimagati, schob creditor podіliv sumu borg mіzh usіma guarantors; but if some of the comrades die, without leaving the recession, otherwise it will become impossible, some part of it will be spread between
People's Tribune Gaius Licinius Stolo and Lucius Sextius Lateranus
Septimonti included sim pagorbiv: Palatine, Esquiline, Vіminali, Kvirіnale, Campidoglio, Chelio, Aventin.
Type of lat. senatus vіd senex - old, old man.
Mores maiorum - zvichaї ancestors, scho were passed "from the father to the blue" with perekonanistyu in that the rules of that zvicha were transferred without reversal and unmistakable.
Gaius Inst. 1.4
Gaius Inst. 1.6
Type of lat. Dominium - Volodinnya, Volodinnya, power.
Guarino A. Diritto privato romano. - Joven. - 2001. - P. 531.
Tse meant that the Libertine had no right to charge against the patron as criminal acts of slandering him, and whether there were any other acts without the permission of the magistrate, and the patron, with his blackness, on the guard of Libertine, buv empowerment with the right beneficium competentiae(lit. "convergence of ship's power") - the possibility of paying off the creditor is less than obvious in the new (borzhnik) koshtіv.
To try to get rid of the shoes of libertine, to give the patron the necessary services, for example, to talk about the children of the patron, to curry yoga and other things.
At the time of the death of a libertine, who, without having closed the decree, the patron of that yoga child, claimed the right to the congress (for Law 12 Tables).
Adsertor at times, having acted not as a positivity, but as a representative of the people's power, takes the defense of a new hulk.
Iust.Instit.3,7,4.
As the Sabinians were respecting (done earlier than the accepted thought), it was necessary to recognize the current age of maturity in the skin specific mood of the way inspection corporation o ris (I look around the body), so that the present day has changed a lot. Navpaki, the procurators vowed to see the present again 14 years for the boys and 12 years for the girls. By the good fortune of Justinian, having accepted the correct thought of the procurators, for good reasons pudicitia (dotrimannya modesty), in spite of the unpleasant need to submit to a condescending procedure.
Div: Roman private law: Podruchnik / Ed. I.B. Novitsky and I.S. Peretersky. - M.: New lawyer, 1998. P.114.
Dormidontiv, G.F. Roman law system. Zagalnaya part. - Kazan, 1910.
Predialny - land
Pokrovsky I.A. History of Roman law. St. Petersburg: "Litniy Sad", 1998. S. 317.
Dormidontiv G.F. Decree op.
Bartoszek M. Rimske right. Understood, terms, meaning. S. 274.
Novitsky I.B. Fundamentals of Roman civil law. P.121.
D.7.8.10; S. 3. 33. 13
Iust.Instit.1.3.13.pr
for example, assistant D.V. Doshchova from Roman private law (Dozhdev D.V. Roman private law. M. - 2003. - 784 p.)
Just. Inst. IV.5 pr.
Pokrovsky I.A. Decree op. S. 375
Such pributkovo-vitrate books in leather pater familias, where having written down the sumi, stained with it and otrimani in the others. Have such a book, have the column “acc e ptum”, tobto. “otrimane” and a letter of acceptance was made.
Doshchov D.V. Roman private law. S. 471.
Doshchov D.V. Decree op. S. 475.
Doshchov D.V. Decree op. S. 536.
Vymorochnaya spadshchina - spadshchina, not accepted by the everyday spadkoyets neither by command, nor by law. Starting from the principate’s hour, it’s easy to enter into the viceroyal recession, passed from the power of the state.
Doshchov D.V. Decree op. S. 526.
The right of tribute is such an order of decline, if at the time of the death of those who fell before the decline, their replacement was called out to their children and other blessings.
Apparently, up to the principle of a talion for a special one, as she suffered because of the destruction of her rights, she recognized the ability to kill her own falsehood of the same shkodi, that the bula was given to the victim himself. This principle was called "an eye for an eye, a tooth for a tooth"
For example, like a person to reveal villainy in her booth at night, - tobto. if you find evil at home, then such a person has the right to kill him and you won’t come for the price.
Behind the laws of Table 12, the creditor, who did not take off the payment to the borg, delivering the borzhnik (at the time of consumption, from zastosuvannyam forces) to the magistrate, in the presence of which the parties declared about the subject of the super river and initiated the process. It was alleged that the borg was right not to pay the creditor, which fact was confirmed to the decisions of the magistrate, and as a result the creditor took away the right to sell the debtor from slavery between Rome.
The first formula was called for by the boules enshrined in the laws, and they were divided by the magistrates-pontiffs, which the parties were called for a long time, to request the formulas for repetition from the court process. Only from the end of the 4th century BC the formulation of the call was publicized and step by step adopted by secular jurisprudence.
At the same centumviri, they did not allow a specific right in the warehouse, but divided it into sections with the same method ( consilia)
Behind Law 12Table summa sacramenti was calculated by the offensive rank: 50 asiv the side was crying, as the versatility of the joint object became less than 1000 asiv, that 500 asiv, as such a versatility was higher.
On the basis of such a procedure in the legal process, the formulary had no goitre, but in the event of a failure to appear, it was possible to bring him to the court's sight by force, the shards appeared to be able to take such a decision before the appearance (for example, to bring you actio poenalis - penalty call).
Stipulation ( prescribedio) - a formal, abstract, contractual agreement that establishes a goiter for an individual, like yoga.
A syllogism is a form of a visnovka, if from tsikh two suzhen the third is vyplyvaya.
Novitsky I.B. Decree op. S. 365.
Ei incumbit probatio qui dicit, non qui negat (Pavlo)
A variety of processes, founded on the provisions of the law, as little as possible to decile minds: first, look at Rome, or in the middle of a mile outside of Rome; in a different way, and pozivach, and vіdpovidach mali buti Roman hulks; thirdly, the decision was blamed on a single judge.
Litіscontestation – litis contestatio – a formal act, like the parties to the formulary process, residually confirmed the change of the formula, zocrema, established the subject of the call, which was not a moment of change, to transfer the formula to the private court. The litiscontestation extinguished the right of a vimogy posivacha, including the possibility of raising it by the subject of a repeated judicial review, so that among the persons themselves z tієї zh pіdstav.
Such a process, without loosing all minds for the recognition of it by the process of “judice legitim”, was based on the judges of the magistrate, who looked at them at the first stage.
Vasilyeva T. G., Pashaeva O.M. Roman right. Abstract of lectures. S. 127.
