Roma Hukuku`nda iniuria ve çağdaş Türk Hukuku`nda kişilik hakkının korunması

Abstract

150 SUMMARY The subject of this thesis covers Injuria in Roman Law and Protection of Personality in Modern Turkish Law, In Roman Law, the term injuria in its broadest sense means literally any unlawful act, an act contra ius, something done non iure. But, specifically injuria embraces particular crimes. In this special or seperate delictual sense.injuria means insult ( contumelia). a wrong to one's personal rights as distinguished from a wrong to one's property (damnum). It includes not only bodily injuries, such as assault, battery, false imprisonment, and kidnapping, but also offences against one's reputation, honour, dignity and peace. Injuria in its second sense was based on the XII Tables and for that reason Gaius ranged it among the obligationes ex delicto ( Gaius. Ins. 3. 182 ) and described it in his Institutions. The XII Tables recognized only variosus bodily assaults as giving a right to fixed pecuniary penalties (poenae) or retaliation (talio). These very primitive rules in the XII Tables became obsolete. Because the crude penalty of retaliation seemed no longer compatible with civilization and was no longer practised. The fixed pecuniary penalties lost their point owing to the depreciation of the as. Eventually the praetor intervened and granted actio iniuriarum aestimatoria.In the formula the praetor authorized the judges to fix the penalty as it seemed good and equitable to them. In this action actio iniuriarum the plaintiff made his own assessment of the extent of the151 damages in a sum of money and the judge sentenced the defendant to what seemed to him good and equitable (bonum et aequum). but not to a larger sum than demanded by the plaintiff.The actio iniuriarum afforded a strong and efficient protection against all cases of injuries, physical or moral, particularly against defamation of any kind. Injuria was a private crime (delictum) «prosecuted only at the request of the offended person and for that reason the classical actio iniuriarum was a pure penal action and condemnation involved infamia. The classical lawyers have carefully interpreted the edictal clauses, in particular that on defamation. But they never attempted to give a definition of iniuria.So the boundaries of injuria remained fluid. In Modern Turkish Law the concept of personality in its broadest sense involves not only rights and obligations and capacity, but also, among other things, bodily integrity, health, freedom, name, reputation and the right to privacy. Persons are legally entitled to protect their personalities. There are legal safeguards of personality against others and against oneself. First of all personality is safeguarded against third persons by the Criminal Code (e.g. Art. 174, 175, 201,179-192) and the Civil Code (Art. 24, 24a,25, 85, 12611,143, 304-305) and finally the Code of Obligations (Art. 45-49). Criminal sanctions can't compensate the injured party, for that reason the Criminal Code is not always an adequate protection. Therefore, protection under the civil law includes^i&seMgretk, Krmûu 152 Ookihmxxtasyon Meri««J other remedies, particularly compensation. There are two types of damage which can be compensated. One of them is material damage. If as a result of a neglient or intentional illegal act material injury is caused, the damage must be compensated. The other is immaterial damage. If the attack violates one's personality and accordingly immaterial injury is caused, such damage must also be compensated. In addition to the protection of the personality against third persons, it is also protected against the person himself by Article 23 of the Civil Code. Because, long experience has shown that persons themselves sometimes agree to restrictions on their own personality under outside pre s sure. Therefore, e.g., no person may sign a contract or promise not to marry in his lifetime, also no person may promise not to bring a suit in court. This thesis contains an attempt to estimate the influence of injuria in Roman Law upon the protection of the personality in Modern Turkish Law, It is the well-known fact that particularly in Turkish Law of Obligations there are a lot of institutions which were prevalent in Roman Law of Obligations Therefore it will be seen in this thesis that there are a lot of similarities in the field of protecting the personality between Roman Law and Modern Turkish Law. It emphasizes the fact that Roman Law is not dead, not only a matter of ancient legal history, but also is still alive and even now influences Turkish Law in its whole parts.