No Payment without Labor? -What Roman Law says as to Locatio conduction operarum as Labor contract-

This article deals with the question in Roman law of whether or not the employer was obligated to pay the remuneration (wage), when the employee was hindered from offering his labor by an event not attributable to both of them. It is hard to answer this question of risk distribution between the parties in the Roman law of labor contract, because there is only a very limited number of legal sources available. A critical survey of these sources, esp. D.19.2.19.8-10 (Ulp. 32 ed.) and FIRA III, No.150 a-c (CIL III, 948-949 Tab. IX-XI), reveals no certain legal guideline in theory and practice. The latter shows but a spectrum of practical solutions by way of conventional agreements between the parties, and the former sanctions according to the general principles of contract law, because the case it deals with concerns a situation not of risk distribution, but of a fault to be blamed to one of the parties. The picture we have shows a settled contract of labor freely stipulated by the parties. However, we also find a series of legal decisions securing laborers working conditions tolerable and humane as are necessary for their health and aliment (Alf. D.38.1.26; Ner. D.38.1.50.1; Iav. D.38.1.33; Gai. D.38.1.19; Paul. D.38.1.20.pr; Gai. D.38.1.22.2; Paul. D.38.1.16.1). It is, therefore, worthy to emphasize on the two competing ideas of labor contract among the Roman jurists. The veteres, the Republican jurists succeeded by the Sabinians in the classical period, deemed it as a status contract to the effect that it might...이 논문은 서울대학교 법학발전재단 출연 법학연구소 기금의 2006학년도 연구지원비 의 보조를 받았음