罗马法中的胁迫论

Stress on Law of Rome

罗马胁迫法起源于严法契约与诚信契约。在严法契约中,胁迫之诉必须事先向裁判官提出要求与申请才可能受理,而在诚信契约中裁判官可依诚信原则直接裁决,当事人也可以据此提出胁迫抗辩。通常,罗马法胁迫有针对财产实施损害的胁迫、提起民事诉讼的胁迫、对人身实施伤害的胁迫及提起刑事诉讼的胁迫4种情形。但学者们对前两者是否构成胁迫存有歧义。至于构成胁迫的要素,学者们认为有3个:损害威胁引起的恐惧;损害的后果是严重的;威胁违背了善良道德。

Rome stress law is originated from strict law contract and credit contract. In the strict law contract, the stress ac tion which must advance and request to a magistrate can be accepted, and in good faith contract magistrate can directly award hon esty principle, the parties may also put stress defense. Usually, Rome law stress has four kinds of situations, such as damage to property, implementation of stress filed a civil lawsuit, the stress on personal stress and criminal damage stress, but the scholars have ambiguous ideas about which the former two constitute stress or not; as for the elements of stress, the scholars think there are three： the fears caused by thread and damage; damage consequence is serious; threats are against good morals.