不動産占有取得時效의 爭點에 관한 硏究 = (A) Study of the Important Issues about Acquisitive Prescription of Real Property on grounds of 20 years of Possession

부동산 점유취득시효의 주요 쟁점과 소유자·점유자 간 이해관계를 검토했다.

In korea, many evidences for the ownership of lands have been disappeared and destroyed throughout the korean war and the illegal rule of japanese imperialism. so the system of the acquisitive prescription have taken the very important role and function that was to coordinate the conflict of interests between an owner and an occupant.

Though there are many different theoies about the reason for being of the prescription, The significance of existence of acquistive prescription system of real property by possession(the article 245, clouse 1 of korean civil code) is to make it easy for the true owner to prove the ownership because there is strong probability that he will be true rightful person in case that there is a fact of having exercised his rights permanently. This significance of existence of the system is to be a criterion of solving legal problems in various issues from requisite to effect of acquistive prescription of real property by possession.

First, it is necessary that the meaning and the standard of judgment of the intention for ownership as one essential element of the acquisitive prescription should be interpreted strictly because of the worry that untrue righter may be protected. So whether it is hostile possesson or not is to be decided by considering the objective characteristic of title and all circumstances related to possession externally and objectively.

and possessor's opponent is to insist and prove that possessor's possession is not hostile possession from the nature of the title or that he assumes the attitude that he would not take if he were true owner or that he doesn't assume the attitude that he would take naturally if he were true owner, and the burden of proof is to be mitigated to a degree of proving superior probability of not being the intention for ownership.

Though the theories are divided as to whether the possession without permission is admitted as the hostile possession or not, I think the possession without permission is to be presumed to be the hostile possession first because of article 197 of korean civil law, but that the possessor without permission can't obtain ownership after all by acquisitive prescription by possession in case that the adverse party prove the fact that possessor's possession is the possession without permission in view of the purpose of article 245 of korean civil law and the reason for being of the acquisitive prescription system of real property by possession that true righter should be protected.

Besides, though the legal characteristic of the right of registration claim caused by acquisitive prescription of real estate of possession in our civil law article 245 clause 1, I think, may be the right of credit claims, the legal relation as a result of accomplishment of acquisitive prescription is to be understood also in connection with the significance of existence of the system and the purpose of legislation.

So the occupant should be able to claim against the third acquisitor without regard to the condition of whether it is before or after the completion of acquisitive prescription for 20 years when the proprietor assigned the real estate to the third acquisitor and he finished the registration, which can be reinforced with so-called retroactive-counting theory. besides, the third acquisitor will be able to place the responsibility for security on the proprietor and to indemnify himself for a loss after all.

Besides, in my opinion it is necessary that the owner should bear the responsibility for nonperformance of obligation or for tort to the possessor in case of daring to transfer the ownership of the land to the third acquisitor maliciously in spite of noticing or being in position to know about the fact that acquisitive prescription has been completed by occupancy. on the other hand possessor should be able to exercise the right of compensation claim without restriction of additional requisite in view of the intent of the institution in the case of property expropriation.

and the possessor should be able to claim the transference registration of ownership to the third acquisitor if proprietor's transference of ownership is void because of the third acquisitor's positive conspiracy, according to what is called 'unlawful cause proffer' principle.

In addition, it is desirable that when possessor assigns his possession to the third acquisitor after completion of acquisitive prescription, possession-lossing-person's right of registration claim should not be extinguished by prescription for 10 years, the present possessor who has been assigned possession should claim the transference registration of ownership to the owner on register book directly not by subrogation on the grounds of acquisitive prescription accomplishment.

目次 = 1 第1章 序論 = 1 第1節 硏究의 目的 = 1 第2節 硏究의 方法 및 範圍 = 3 第2章 取得時效制度의 存在意義 = 5 第1節 序說 = 5 第2節 學說의 對立 = 6 1. 多數說 = 6 2. 少數說 = 8 가. 取得時效一元說 = 8 나. 取得時效二元說 = 8 다. 衡平說 = 9 라. 時效制度否定說 = 9 第3節 大法院의 態度 = 10 第4節 學說·判例의 檢討 = 11 第3章 不動産占有取得時效 要件에 있어서 自主占有 = 14 第1節 序說 = 14 第2節 自主占有의 意義 = 17 第3節 自主占有의 判斷 = 19 1. 自主占有의 判斷基準 = 19 2. 占有權原의 意味 = 22 3. 權原의 性質상 自主占有 또는 他主占有로 인정되는 경우 = 24 가. 權原의 性質상 自主占有로 인정되는 경우 = 24 나. 權原의 性質上 他主占有로 인정되는 경우 = 25 4. 自主占有의 基準時點 = 26 제4절 自主占有의 推定 = 26 1. 自主占有 推定規定의 不動産取得時效에의 適用與否 = 26 2. 自主占有 推定規定의 性質 = 28 3. 自主占有 推定規定의 適用範圍 = 29 4. 自主占有 推定規定의 法的效果 = 31 가. 立證責任의 轉換 = 31 나. 主張責任의 所在 = 32 第5節 自主占有 推定의 飜覆 = 34 1. 推定의 飜覆 方法 = 34 2. 推定의 飜覆을 위한 立證의 程度 = 36 第4章 惡意의 無斷占有와 自主占有와의 關係 = 37 第1節 惡意의 無斷占有의 槪念과 構成要素 = 37 1. 惡意의 無斷占有의 槪念 = 37 2. 惡意의 無斷占有의 構成要素 = 38 가. 客觀的 要素 = 38 나. 主觀的 要素 = 40 제