罗马破产法研究

A Study on Roman Inslolvency Law

《十二表法》中的破产法以债务人的人身作为责任手段,导致债奴甚至杀害债务人的残酷现象。《关于债奴的佩特流斯和帕皮流斯法》废除了债奴制度。尔后产生了财产拍卖制度解决债务人破产问题,但该制度不以解决破产问题为限。它和以后的财产零卖制度都是强制破产制度。恺撒颁布的《关于财产让与的优流斯法》开创了自愿破产制度。它放弃了破产惩罚论,把破产看做一种解决危机的手段,并把破产法独立化。该法深刻影响后世的破产法。此外,罗马法还有特殊破产制度,它们是遗产破产、银行破产、特有产破产、返还嫁资的丈夫破产、受敬畏者破产等,其共同特点是具有特别要素。

The insolvency law in the XII Table Law took the bodies of the debtors as means of the liability, leading to cruel results such as the debt bondage and even killing debtors. The Lex Poetelia Papiria de nexis had abolished the system of debt bondage. Thereafter the system of Bonorum venditio came into being to solve the debtor＇ s insolvency, but this system is not limited to solving bankruptcy problems. This system and the sys- tem of Bonorum distractio that came into being later, both are mandatory insolvency system. Caesar enacted the Lex Iulia de bonis cedendis with which he created a system of voluntary bankruptcy. It gave up the theory of taking bankruptcy as a punishment, but as a means of solving the crisis, and made the bankruptcy law an inde- pendent branch of law. Caesar＇ s Bankruptcy law profoundly influenced its counterparts of later generations. In addition, Roman law also has the special insolvency regime, which covers bankruptcy of heritage, bankruptcy of bank, bankruptcy of peculium, bankruptcy of husbands who must return the dowry to his divorced wife. All of these have a special factor that are their common feature.