부동산소유권취득시효의 입법례와 요건 = The legislative example and requisite of the acquisitive prescription of real estate ownership

부동산 소유권 취득시효의 외국 입법례와 요건을 검토했다.

<Abstract> In this thesis, the legislative example and requisite of the acquisitive prescription of real estate ownership was reviewed for the purpose of studying of the acquisitive prescription system of the foreign countries, the characteristics of our system and the requisite of the acquisitive prescription. Since the Roman era, most of the continental countries governed by law have had provisions on acquisitive prescription. Although the contents are different from country to country because of the countries' unique circumstances, most countries use either the acquisitive prescription by occupancy or the acquisitive prescription by registration.

In other words, while Rome, France and Japan permit only the acquisitive prescription by occupancy, Germany and Switzerland permit the acquisitive prescription by registration based upon the complete equipment of real estate registration system in principle. However, our country have a very unique legal system which has provisions for both regulations.

In other words, the clause 1 of the article 245 of the civil law stipulates the acquisitive prescription by occupancy under the title of 'the acquisition period of real estate by occupancy' by stating that 'If a person has occupied a property publicly for 20 years with the intent of possession, he or she can acquire the ownership by registering'. The clause 2 stipulates the acquisitive prescription by registration by stating that 'If a person registered a property and has occupied the property publicly with the intent of possession for 10 years, with good intent and without committing any faults, he or she can acquire the ownership'.

Therefore, according to the acquisitive prescription provided in our civil law, the clause 1 and the clause 2 have different contents and effects. As for the requisites, in the case of the acquisitive prescription by occupancy of the clause 1, the requisites are the intent of possession and the open 20-years occupancy, registration, while in the case of the acquisitive prescription by registration of the clause 2, such requisites as registration as the owner of the property, good intent and no faults committed are added besides the intent of possession and the open 10-year occupancy.

Concerned with this, occupancy without permission with malicious intent didn't use to be regarded autonomous occupancy, but it has been pointed out that the case can be validly classified autonomous occupancy because the decision about autonomous occupancy should not be based upon good and malicious intents. As for the effect, in the case of the acquisitive prescription by occupancy, the ownership can be achieved through registration when the requisites are met, while in the case of the acquisitive prescription by registration, the ownership can be achieved after a lapse 10 years without any special procedure.

Ⅰ. 序 論 ··················································· 1 1. 問題提起 ··················································· 1 2. 硏究의 範圍와 方法 ········································· 3 Ⅱ. 取得時效制度의 沿革 및 存在理由 ··························· 4 1. 取得時效制度의 歷史的 背景과 立法例 ······················· 4 (1) 序 ························································ 4 (2) 로마法 ···················································· 5 1) 槪要 ······················································ 5 2) 使用取得(usucapio) ········································· 6 3) 長期占有의 抗辯 ··········································· 9 4) 最長期의 取得時效 ········································ 1 0 5) 유스티니아누스황제 勅法上의 取得時效制度 ················ 1 1 (3) 프랑스 民法 ·············································· 1 3 1) 槪要 ····································