不動産 占有取得時效制度에 關한 硏究 = A Study on the Acquisitive Prescription by Occupancy of Real Estate

부동산 점유취득시효의 요건과 소유권 취득 효과를 고찰했다.

If a certain state or realities is continued long, the law gives legal effects to the state and authorizes exercising his or her rights or the state of not exercising, regardless of the true ownership, that is a acquisitive prescription. The clause 1 of the article 245 of the civil law stipulates 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 that if a person registered a property and has occupied the property publicly with the intent of possession for 10 years, with the good intent and without committing any faults, he or she can acquire the ownership.

As for korea, through the government of Japan and Korean War, many owners of properties got lost, or a large amount of the register book disappeared, so it happened that the owners could not manage them. Since Intentionism was adopted in the Old civil law, therefore The enrollment of the register book was ignored and it happened that the registry did not correspond to the true occupancy. The acquisitive prescription could be valued in a positive way, to think that the acquisitive prescription protects the third person with the good intent who trusted the registry as it is, for the public confidence of registry have no effects in our civil law.

By the way, that the acquisitive prescription exists in civil law is from practical needs rather than theoretical. If whoever meets certain requirements can acquire the ownership of the property without regard to true ground of claim.

So this system could be abused by the occupant with the bad intent and, without permission. Actually there are frequent occasions in which a person who is with the bad intent of possession infringes on other's precious property by making bad use of this acquisitive prescription system. In order to prevent this absurdity, we have to make a strict application of this system, for this, the autonomous occupancy, in which one of the requisites of the completion os the intent of possession, is demanded.

And concerned with this, In judical precedents, the occupancy is regarded as unautonomous in which a person who knows he doesn't have any right to occupy occupies a property in the time the owner doesn't take to occupy occupies a property in the time the owner doesn't take a good care of it. And the scrutinization of the precedents and the adequacy of them will be in this study. In the case of the acquisitive prescription by occupancy, when the requisites of the completion are satisfied, the right of claim to enroll in the registry is acquired and the ownership is obtained after exercising this right. not after the requisites being satisfied.

Concerned with this, problems are whether this comes under the extinctive prescription, what the procedures of enrollment are, what the legal relations between the original owner and the third person are, and whether the inheritance of the occupancy lapse from the ex-occupant is possible. About this, the judical precedents are not consistent. Therefore after a general examination of the acquisitive prescription and through the scrutiny of the propriety of the judical precedents, I want to prepare a legislative basis in the direction of the better acquisitive prescription.

第1章 序 論 = 1 第1節 硏究의 目的 = 1 第2節 硏究의 範圍 및 方法 = 3 Ⅰ. 硏究의 範圍 = 3 Ⅱ. 硏究의 方法 = 4 第2章 不動産 取得時效制度의 沿革과 特質 = 5 第1節 取得時效制度의 沿革 및 立法例 = 5 Ⅰ. 沿革 = 6 1. 로마법 = 6 2. 게르만법 = 8 Ⅱ. 各國의 立法例 = 9 1. 프랑스민법 = 10 2. 일본민법 = 11 3. 독일민법 = 14 4. 스위스민법 = 15 5. 영미법 = 18 6. 한국민법 = 18 第2節 民法上 不動産取得時效制度의 特質 및 存在理由 = 22 Ⅰ. 우리 民法上 取得時效制度의 特質 = 22 1. 점유취득시효 = 22 2. 등기부취득시효 = 23 Ⅱ. 取得時效制度의 存在理由 = 23 1. 견해의 대립 = 24 2. 판례의 입장 = 25 3. 검토 = 26 第3章 不動産 占有取得時效의 要件 = 28 第1節 不動産 占有取得時效의 要件 = 28 Ⅰ. 取得時效의 主體와 客體 = 28 1. 취득시효의 주체 = 28 2. 취득시효의 객체 = 29 Ⅱ. 所有의 意思 = 32 1. 의의 = 32 2. 결정기준 = 33 3. 입증책임 = 35 4. 소유의 의사에 관한 구체적 사례 = 36 Ⅲ. 平穩·公然한 占有 = 37 Ⅳ. 取得時效期間 = 38 1. 취득시효기간의 기산점 = 39 2. 점유의 승계와 기간의 계산 = 41 3. 점유계속의 추정 = 42 第2節 取得時效에 있어서 無斷占有와 自主占有 = 43 Ⅰ. 無斷占有의 意義 = 43 1. 무단점유의 개념 = 43 2. 무단점유의 주관적 요소 = 45 3. 무단점유의 객관적 요소 = 46 Ⅱ. 無斷占有의 立證 =