Наукові записки НаУКМА: Юридичні науки (Dec 2018)
The nacency of jurisdictio voluntaria from the letter and the spirit of Roman law
Abstract
The article is devoted to the history of the emergence of an idea of indisputable/voluntary jurisdiction in ancient Rome. As a research base, Digesti Justiniana was analyzed as the main monument of Roman law. There was no holistic conception of the division of jurisdiction into contested and indisputable/voluntary in ancient Rome. The terms “contested jurisdiction” and “indisputable/ voluntary jurisdiction” were not themselves used in Digest. The Digest text itself can also be considered to be only a partly authentic Latin text: first, the original has been changed by glossators and post-glossators, and secondly, the translation of such a complex text will also make its corrections to the content of the ascending text. There is no translation into Ukrainian of this monument, and the content of many fragments can be understood only in the context of specific historical and political events. However, it is evident that in ancient Rome, special procedures and proceedings, other than judicial proceedings, have begun to emerge. They were aimed at preventing violations, protecting and protecting rights through their consolidation, confirmation, and sanction, carried out on a voluntary basis and with the help of special state tools by the efforts of authorized persons. However, these processes have not received proper theoretical consolidation and substantiation. At least this is not reflected in the Digest text. In a later period, apparently thanks to the efforts of glossators and post-glossators, such procedures and proceedings were called “indisputable/voluntary” jurisdiction, and jurisdictions were divided into indisputable/ voluntary jurisdiction and contested jurisdiction. The very term “voluntariа” (“volumtarium”) is polysemantic and can be translated as voluntary, indisputable and consensual and can be interpreted as the absence of coercion by the other party, the absence of a dispute about the right or lack of duty on the part of the official persons to satisfy the requirements of those persons who turned to them for confirmation of facts or solving a difficult situation. The idea of indisputable/voluntary jurisdiction was born not so much from the “letter” of Roman law, but from its “spirit”.
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