점유취득시효로 인한 소유권이전등기청구권에 관한 연구

점유취득시효에 따른 소유권이전등기청구권을 연구한다.

Acquisitive prescription is a system that recognizes the effect of acquiring rights to apparent rights holders by considering such possession as a true relationship when the object continues to occupy calmly and openly for 20 years. In the process of Japanese colonial era and 6.25 and modernization, the actual and registered name on the register was different. In this case, it is a system to allow a person who actually occupies the object to acquire ownership.

In the case of Korea, acquisition prescription is controversial because it is said to be acquired 'by registration'. Article 245 (1) of the Civil Act clearly states that a person who has completed the prescription acquires ownership 'by registeration'. However, Article 187 of the Civil Act stipulates that the acquisition of ownership by law does not require registration. Therefore, the relationship between these two laws became a issue. In this paper, registration was considered to be a requirement for ownership acquisition in the acquisitive prescription.

This is because I think, registration will be the link between fact of possession and a legal state If so, it would be said that the requirements for the occurrence of the right to registration of ownership transfer based on the acquisitive prescription are important in acquiring ownership. First, there is a hostile possession. Second, it must be peaceably and openly possession. Third, 20 years of occupation is required. The issue here is how far the estimation range of hostile possession is. The argument of this paper as to whether the estimation of hostile possession extends to the possession of malicious intent is as follows.

Even in the case of unauthorized possession, it cannot be said that it is not hostile possession. Even in the acquisitive prescription itself, malicious possession or unauthorized possession is not revealed in the literature. Therefore, good faith or malice is not important in the acquisitive prescription itself, but it is important whether it is only hostile or heteronomy possession. When such a right to registration of ownership transfer is created, the exercise should focus on the nature of the right to claim ownership transfer registration and the starting point of the retroactive effect.

This paper maintains that the right to claim ownership transfer registration is a credit ​claim and follows the compromise theory in accordance with the precedent at the starting point. In addition, if the registred titleholder does not change and the period of acquisitive prescription is completed, it is considered that the right to claim ownership transfer registration can be exercised to the registred titleholder. When the registred titleholder was changed before and after the completion of the acquisitive prescription period, it was considered that it could be opposed to the third acquirer if it was changed before the completion of the period.

But, it was considered that it could not be opposed to the third acquirer if it was changed after the completion of the period. The precedent sets five principles for the legal status of the person who has completed the acquisitive prescription. among these, the problem is the third principle and the fourth principle derived therefrom./among these, the problematic is the third principle and the fourth principle derived from it. This paper accepts the criticism. Therefore, I agree with the view that while following the precedent theory, it should set a specific scope for those who have completed the prescription to counter.

In other words, the legal status of the person who completed the acquisitive prescription should not be uniformly determined by accidental circumstances such as before and after the completion of the acquisitive prescription. Finally, if the registred titleholder is changed after the completion of the period of acquisitive prescription, it was examined whether the person who completed the acquisitive prescription can be protected by tort liability, default liability, and the claim right of vicarious compensation ​In the case of tort liability, it was divided into cases where the registred titleholder did or did not know the completion of the acquisitive prescription.

In the former case, liability for tort may be held, but in the latter case, this is not the case. In the case of default liability, the acquisitive prescription is recognized. because, default liability is not limited to a bilateral contract relationship. Thus, It can be apply to the acquisitive prescription relationship. Finally, in the case of the claim rights of various compensation the 'limited recognition theory' was followed. First of all, the system with solid grounds is followed, but the claim rights of various compensation is recognized only in exceptional cases.

In addition, the claim rights of various compensation is basically a right that presupposes a claim-obligation relationship, but is not based on the law.

제1장 서론 1 제1절 연구의 목적과 필요성 1 제2절 연구 방법 3 제2장 취득시효 제도의 존재 이유와 등기주의의 채택 5 제1절 서설 5 제2절 취득시효 제도의 존재 이유 5 I. 학설 5 1. 계속된 사실 상태와 사회질서의 안녕 5 2. 입증 곤란에 대한 구제 6 3. 권리행사 태만에 대한 제재 7 II. 판례 7 III. 검토 8 제3절 점유취득시효와 등기주의의 채택에 관한 논의 9 I. 등기주의채택의 의의 9 II. 학설 10 1. 등기필요설 10 2. 등기불필요설 11 III. 검토 11 제3장 점유취득시효에 의한 소유권이전등기청구권 13 제1절 등기청구권의 발생요건 13 I. 서설 13 II. 자주점유 13 1. 자주점유의 의의 13 2. 자주점유의 추정 17 3. 자주점유 추정의 번복 18 4. 검토 20 III. 평온 · 공연한 점유 22 IV. 20년의 점유기간 23 제2절 등기청구권의 행사 23 I. 서설 23 II. 등기의 요구와 소유권이전등기청구권 24 III. 소유권이전등기청구권의 성질 25 1. 소유권이전등기청구권의 성격 25 2. 소유권이전등기청구권의 양도성 31 IV. 소유권이전등기청구권의 기산점 32 1. 서설 32 2. 학설 33 3. 판례 34 4. 검토 37 V. 소유권이전등기청구권의 상대방 38 1. 의의 38 2. 판례 40 3. 점유자의 특별승계인과 원소유자의 관계 41 VI. 시효완성자의 법적지위에 대한 판례의 태도와 그 비판 46 1. 서설 46 2. 판례의 5원칙 46 3. 제3원칙에 대한 비판 60 4. 판례 5원칙에 대한 학설의 입장 62 5. 소결 62 제