부동산 취득시효제도에 관한 연구 : 국유재산을 중심으로 = (A) Study on the Acquisitive Prescription System of the Ownership of Real Property : Focused on National Property

국유 부동산의 취득시효와 소유권 취득 요건을 연구했다.

The korea recognizes both acquisitive prescription system by possession and by register book in the acquisitive prescription system of Real property. In common, the most important matter demanded between both systems is hostile possession. The hostile possession is called the possession as an intention of ownership by a theory and precedent, and the intention of ownership is the intention that a proprietor can actually use the exclusive control. This intention of ownership must be decided in the right-causing's objective characteristic or the external form and objectivity by all the matters that are related to possession.

And in a case the possession right-causing is obscure, the opposite must prove that a possessor knows he(or she) hold the object with out right, because the possessor is regarded with intention of ownership by Article 197 of korean civil law. The presume of hostilit can be changed if the possession is proved as malae fidei possession or an objective situation is proved that a possessor don't have intention of using exclusive control. In the effect of acquisitive prescription, a possessor's situation obtains registration-demanding by the perfection of acquisitive prescription period, and possess the ownership by registering with registration-demanding.

And over relations to acquisitor, owner and the third, acquisitor's situation is remarkable changed in whether the third being or not after perfection of acquisitive prescription period. And the solution of this problem is thought of as the matter of explanatory and legislative view how to institute the relation of acquisitive prescription and registration. In the Japan, the theory is divided into a valuable theory of possession, a valuable view of registration and electicism, and the contents are also various. And there is not the program that at once can answer both the systems under the current civil law. Therefore, this problem should be resolved by legislative view.

The acquisitive prescription system has affirmative effects that restore aright of a right-ful claimant who didn't have a document related to aright through a sudden change in the modern history (The Japanese Raid Period, The korean war) But it causes the different results not agreed with the law's purpose. The reason is that the system presumes it as a hostile possession when the possession right-causing which a possessor insists isn't acknowledged on explaining the possession right-causing.

The 5 of National Property law that prevents the one, who possesses national properly without the source, from gaining on the property is sentenced to violation of the constitution court, because the law foes against a principle of the equality on the constitution in that it can be applied to various property in private transactions of the constitution, many national properties have be gained on for many suits of acquisitive prescription. To the view to the people's consciousness in the today, If one is a true right-claimant, the one will not offer a owner a purchase, or pay a lease based on a lease contract except the foolish.

The ground that must protect the one who possesses property without aright is feeble. Additionally, to the one who is sleeping on aright, the law can exercise the system for public interests, but cannot devest a person of a right in the capitalist nation. To be different from the last, the vertification of a right-relation is simple and the register system is setup, so acquisitive prescription system by possession must be abolished in a legislative view or be reinforced in condition. The acquisitive prescription system by register book has the affirmative effects that remove difference between a register and a condition of a fact.

But to protect a true right-claimant from losing a right, The Civil Law must be revised into acquisitive rescripption getting longer than today's.

目次 = ⅰ 第1章 序論 = 1 第1節 硏究의 目的 = 1 第2節 硏究의 範圍와 方法 = 3 第2章 不動産 取得時效制度의 沿革과 立法例 = 5 第1節 沿革 = 5 Ⅰ. 로마法 = 5 1. 使用取得 = 6 2. 長期占有의 抗辯(praescriptio longi temporis) = 9 3. 유스티아누스法에 있어서의 取得時效 = 10 4. 制度의 存在理由 = 11 Ⅱ. 게르만法 = 12 第2節 各國의 立法例 = 12 Ⅰ. 프랑스 民法 = 12 1. 槪要 = 12 2. 取得時效의 要件 = 14 3. 制度의 存在理由 = 16 Ⅱ. 日本 民法 = 18 1. 舊 日本民法의 取得時效 = 18 2. 現行 日本民法의 取得時效 = 21 Ⅲ. 獨逸民法 = 23 1. 槪要 = 23 2. 登記簿取得時效 = 24 3. 公示催告取得時效 = 26 4. 制度의 存在理由 = 28 Ⅳ. 스위스 民法 = 28 1. 登記簿取得時效 = 29 2. 占有取得時效 = 29 3. 制度의 存在理由 = 30 Ⅴ. 英美法 = 30 1. 槪要 = 30 2. 提訴期限法(Statute of Limitations) = 31 3. 制度의 存在理由 = 34 第3節 우리 民法上 取得時效制度 = 34 Ⅰ. 民法典施行前의 時效制度 = 35 1. 朝鮮時代 = 35 2. 慣習調査報告書 = 36 Ⅱ. 立法過程 = 36 1. 民法草案 = 36 2. 草案에 대한 修正案의 檢討 = 37 Ⅲ. 取得時效制度의 存在理由 = 38 1. 學說 = 38 2. 判例의 態度 = 43 3. 私見 = 44 Ⅳ. 우리 民法의 比較法的 特質 = 44 第3章 不動産取得時效의 要件 및 效果 = 46 第1節 取得