THE DISAPPEARANCE OF THE `PRIVATE` ELEMENT FROM THE CONCEPT OF THEFT: A HISTORICAL EXPLANATION

Authors : Xuewei ZHANG

Pages : 949-972

Doi:10.33629/auhfd.1295097

View : 66 | Download : 51

Publication Date : 2023-07-07

Article Type : Research Paper

Abstract :According to the unique public and private law division standards in Roman law, the concept of theft in Roman law has a dual nature of public and private. Ordinary theft is considered to reflect private legal relations and is a delictum, while aggravated theft reflects the legal relations dominated by the will of the state and is a public crime. The duality of this theft also affected the development of the concept of theft in the Middle Ages, both Canon law and Germanic law distinguished between ordinary theft and aggravated theft, but ordinary theft was no longer regarded as delictum. Germanic law upheld the idea of “public peace”, while Canon law legitimized the criminalization of theft based on the idea of “atonement” and finally integrated the concepts of theft in Roman law, Canon law and Germanic law through the promulgation of the Constitutio Criminalis Carolina at the end of the Middle Ages. Ultimately, Germanic jurists reinterpreted the conception of theft expounded by classical jurists and transmuted the notion of theft into one invested with the character of a public crime. This thereafter constituted the prototypical paradigm of modern German theft legislation.
Keywords : Delictum, Adi hırsızlık, Nitelikli hırsızlık, Kanonik Hukuk, Cermen Hukuku