不動産所有權 一般取得時效의 要件과 效果 = (A) study on the Requisites and Effect of Acquisitive Prescriptionon grounds of 20 years Possession

부동산 소유권의 일반취득시효 요건과 효과를 연구했다.

An acquisitive prescription is a system that acquires the rights to an unauthorizer in the case of exercising his rights in a certain period. The system was originated from the Roman law, and we accepted it through the Japanese civil law. In general, an acquisitive prescription has two forms; general acquisitive prescription(acquisitive prescription of possession) and acquisitive prescription of registration. In the transfer of property rights, countries such as France and Japan usually, which have adopted the intentionalism acknowledge general acquisitive prescription.

On the other hand, country such as Germany, which has adopted the formalism acknowledges fundamentally the acquisitive prescription of registration. We have adopted the formalism, but acknowledge both a general acquisitive prescription and an acquisitive prescription of registration. If we acknowledged only the acquisitive prescription of registration, it would force possessors to register unreasonably and cause false registrations. Therefore, it is proper to accept both of them.

Clause 1, Article 245 of the civil law, rules that a person who has had acquisitive intention for 20 years peaceably and openly can possess real estate by registering it as requisites of general acquisitive prescriptions. Three important matters on the cites general acquisitive prescriptions will be presented in this study. First, the completer of prescription should acquire the ownership after acquiring the right to claim for registration which is characterized for a claim. The reason why the civil code says that possessors should acquire the ownership by registration is that it adjusts interests between a completer of the prescription and the third person interested.

Especially, it must be essential for people under the relation of the complecated property rights' transfer, which is caused by changing from intentionalism into formalism of a property right transfer as well as the Liberation and the Korean War. Second, the code has taken possession for 20 years, however, this led to two problems. One is when the point of an acquisitive prescription calculated. The other is a matter of the succession of possession from Clause 1, Article 199. The Supreme Court concerning about the former has exceptionally judged that the theory of reckon backward must be adopted, if there is no a third person interested.

Even if counting an initial date in for the possession period gives disadvantages to a person, who has possessed real estate for a long time and has completed a prescription without registration, it seems to be reasonable for trade safety. The Supreme Court concerning about the latter has judged according to the day when the possession is succeeded. That is, if the succession is taken 'before' the completion of prescription, the successor could hold a right to claim for registration. On the other hand, if it occurs 'after' the completion of prescription, the ex-possessor could demand for registration and the successor has to subrogate it.

The second interpretation is seemingly against a rule which has acknowledged the succession of possession.(Clause 1, Article 199). In addition, it is not proper in economy of a lawsuit. Therefore the Supreme Court should acknowledge the successor's the right to claim for registration. Third, it is about the case that the possessor doesn't register real estate after the completion of prescription, Also, the owner(transferrer) sold the property to a third acquisitor in good faith(transferee) and the transferee registered it, It is uncertain whether the transferrer knew or not, The Supreme Court has judged that the completer can not be against the transferee.

However, personally it appears much natural that the owner takes responsibility for damages to the completer. The Supreme Court has not acknowledged responsibility for the default, but acknowledged liability for the tort to the transferrer. In opposition to that, responsibility for the default should be acknowledged in the relation of a claim and obligation which was originated by legislation. As a result, the completer has the right to claim damages about the default and the tort. Also, the completer has the right to claim for surrogate profits to the sales price, though there is no rules in the civil code.

目次 = i Ⅰ. 序論 = 1 1. 硏究의 目的 = 1 2. 硏究의 方法 및 範圍 = 2 Ⅱ. 不動産 取得時效의 槪觀 및 立法例 = 4 1. 不動産取得時效의 槪觀 = 4 1) 不動産 取得時效의 意義 = 4 2) 不動産 取得時效의 種類와 機能 = 5 (1) 種類 = 5 (2) 不動産 一般 取得時效의 機能 = 6 2. 外國의 不動産 取得時效制度 = 7 1) 로마法과 게르만法 = 7 (1) 로마法 = 7 (2) 게르만法 = 11 2) 프랑스民法 = 12 3) 독일民法 = 13 4) 스위스民法 = 15 5) 日本民法 = 16 6) 滿洲民法 = 18 7) 英美法 = 19 3. 우리나라의 不動産取得時效制度의 沿革 및 立法過程 = 21 1) 沿革 = 21 (1) 呈訴期限制度 = 21 (2) 慣習調査報告書 = 22 2) 立法過程 = 23 (1) 民法草案 = 23 (2) 民法草案修正案 = 24 (3) 修正理由檢討 = 26 3) 一般 取得時效의 違憲 與否 = 27 4. 不動産取得時效의 存在理由 = 28 1) 序 = 8 2) 學說 = 28 (1) 多數說 = 28 (2) 少數說 = 29 3) 判例 = 31 4) 檢討 = 32 Ⅲ. 不動産一般 取得時效의 要件 = 35 1. 取得時效의 主體와 客體 = 35 1) 取得時效의 主體 = 35 2) 取得時效의 客體 = 35 (1) 自己 所有의 不動産 = 36 (2) 不動産의 一部 = 36 (3) 公物 = 38 (4) 國有財産 = 39 (5) 不動産의 共有持分權 = 40 2. 所有의 意思(自主占有) = 41 1) 權原의 性質上 自主占有인 境遇 = 42 2) 權原의 性質上 他主占有인 境遇 = 4