The article,after considering in a general way the two types of legal procedures regulated in the first column of the Code of Gortyn (CdG I, 2-14; CdG I, 15-24),focuses on CdG I, 15-34,aiming at answering the following three questions:which kind of relation is supposable between the ‘astreintes’ codified in CdG I,24-35 and the puzzling institute of the Gortynian execution against the person?,which kind of chronological and causal connection exists between the ‘astreintes’ and the ‘dikastic decision’?, which is the ratio of the discipline controlling the evidence stage? Once denied the so called Deliktprozeß’ thesis,and conformed the trials on issue to a ‘diadikasic structure’ (in which each party plays,substantially, the role of the actor),we reflect on the reasons that,on the one hand, object a purely declaratory nature of the judgment, and, on the other hand,drive the interpreter to consider such a judgment, though indirectly,as a condemnatory one. In fact, it is a condicio sine qua non of the ex lege order to λαγάσαι or to ἀποδόμεν. Afterwards, we analyze the possibility that the so called astreintes (punitive measures of duress against the νενικαμένος) were set by the Gortynian lawmaker ex ante in order to spur the looser to execute spontaneously the order of delivery or handover, and that they represent an hypothetical predetermined content of the same dikastic pronounce.Moreover,on the ground of the ordinary connection between the statutory rules on the astreintes and the nature of the decision, we conjecture that, in Gortyn,the private ἀγωγή,as a form of executive self-help,must be refused whenever the dispute concerns a right in re quae speciei est or a right ad rem quae speciei est (for instance, such as in the first column).Finally, after examining CdG XI,26-31,with regard to the probationary discipline of the trials regulated in CdG I, 15- 24, we suppose that: the Gortynian diadikasic procedure implies that the burden of proof lies on both parties;the rules which provide for a ‘dikastic κρίνεν after the oath’ when there are no witness or when both the formal actor and the formal defendant produce their own witness,are not susceptible to any generalization and, therefore,they can not apply to those procedures in which just one party has to provide evidence
‘ASTREINTES’ E REGIME PROBATORIO NEL PROCESSO GORTINIO: CONSIDERAZIONI IN MARGINE A IC IV 72 I, 15-35
PELLOSO, Carlo
2010-01-01
Abstract
The article,after considering in a general way the two types of legal procedures regulated in the first column of the Code of Gortyn (CdG I, 2-14; CdG I, 15-24),focuses on CdG I, 15-34,aiming at answering the following three questions:which kind of relation is supposable between the ‘astreintes’ codified in CdG I,24-35 and the puzzling institute of the Gortynian execution against the person?,which kind of chronological and causal connection exists between the ‘astreintes’ and the ‘dikastic decision’?, which is the ratio of the discipline controlling the evidence stage? Once denied the so called Deliktprozeß’ thesis,and conformed the trials on issue to a ‘diadikasic structure’ (in which each party plays,substantially, the role of the actor),we reflect on the reasons that,on the one hand, object a purely declaratory nature of the judgment, and, on the other hand,drive the interpreter to consider such a judgment, though indirectly,as a condemnatory one. In fact, it is a condicio sine qua non of the ex lege order to λαγάσαι or to ἀποδόμεν. Afterwards, we analyze the possibility that the so called astreintes (punitive measures of duress against the νενικαμένος) were set by the Gortynian lawmaker ex ante in order to spur the looser to execute spontaneously the order of delivery or handover, and that they represent an hypothetical predetermined content of the same dikastic pronounce.Moreover,on the ground of the ordinary connection between the statutory rules on the astreintes and the nature of the decision, we conjecture that, in Gortyn,the private ἀγωγή,as a form of executive self-help,must be refused whenever the dispute concerns a right in re quae speciei est or a right ad rem quae speciei est (for instance, such as in the first column).Finally, after examining CdG XI,26-31,with regard to the probationary discipline of the trials regulated in CdG I, 15- 24, we suppose that: the Gortynian diadikasic procedure implies that the burden of proof lies on both parties;the rules which provide for a ‘dikastic κρίνεν after the oath’ when there are no witness or when both the formal actor and the formal defendant produce their own witness,are not susceptible to any generalization and, therefore,they can not apply to those procedures in which just one party has to provide evidence
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