フランク時代の仮装訴訟とは何か : メロヴィング朝後期の国王法廷の役割に関する一考察

抄録

The fictitious suit (Scheinprozess), that is, court procedure through which a private legal action was confirmed, was held only at the royal tribunal during the period from the late seventh to the early eighth century. In examining this procedure, the author tries to shed light on the role of the royal tribunal in the late Merovingian period. The fictitious suit has been seen as an affirmation of property ownership, or as a means of conveyancing, but it was in reality a confirmation of warranty against eviction (Eviktionshaftung). Therefore it was based on a private legal action following Roman law. Roman private law was practiced until about the middle of the eighth century in the north of the Frankish kingdom called Neustria, but in this region disputes were settled predominantly by unwritten Frankish customs. Although the covenant of warranty against eviction was made on the occasion of conveyance, it had no effect as an objective rule. The use of the fictitious suit by the royal tribunal shows that kingship in the late Merovingian period was trying to cover deficiencies in objective norms. The fictitious suit of the Frankish period could thus be used only at the royal tribunal, and only when and where private legal action was practiced according to Roman law, but disputes were settled by Frankish customs, in Neustria in the late Merovingian period. It is generally acknowledged that the legal life in the Merovingian state is characterized by plurality of law. However, the research has not questioned what role the royal tribunal played in this context. The fictitious suit, which is only one part of the activities of the royal tribunal, shows that Merovingian kingship played an important role as public power, though partially and rudimentarily, whenever and wherever Roman law as the objective norm and Roman administration declined. It also suggests that the royal tribunal was able to cope with juristic situations which varied in different regions.