不動産取得時效에 關한 硏究 = (A) study on the acquisitive prescription of real property

부동산 취득시효와 그 법적 요건을 연구했다.

In real estates law of Korea, the rules of acquisitive prescription, especially those on grounds of twenty years of possession (in article 245), are very frequently asserted by parties of lawsuits as base of argument, and also often approved by judges in judgement. Today, every state admits acquisitive prescription. Since Roman law, foreign countries admit it and in Korea. And, our system of acquisitive prescription of real property acknowledges two types of system : the acquisitive prescription of possession and the acquisitive prescription of registration. Compared with foreign legislative systems, it could be said that our system is unique.

So, we should develop our own theory of interpretation which will correspond with our realities. In foreign countries, positive prescription possession is sanctioned when they take a course of the principle of intention. And rule, positive prescription of resister is admits formalism. And also acquisitive prescription of possession and that of resister are adopted equally. Nevertheless, our theory of the acquisitive prescription of rear property should reflect our own interpretation of the system. Faced with a Supreme Court that handles its leading case in the exact same manner as its Japanese counterpart, it is necessary to rectify the current attitude.

With this basic knowledge, the following is a list of crucial matters which should be rectified or maintained in future theories of construction : First, it is necessary to reformulate the system of acquisitive prescription since the traditional theory has limitation in explaining its essence. Second, in foreign countries adopted formalism, they don't request resister necessary condition for acquisitive prescription of possession. But our Civil law don't admit the principle of public confidence, but it demand resister.

Third, the acquisitive prescription should be amended to admit or deny acquisitive prescription according to the condition of whether it is before or after the completion of acquisitive prescription when there is a third acquisitor. Fourth, the succession problem of resister about positive prescription of resister the problem of responsibility in proof of independent possession. Finally, former theory of construction have prescribed and portrayed acquisitive prescription under the premise that a person who has a true right is not a person who argues for acquisitive prescription but a registered person.

The above reinterpretation of the theory clearly shows that it is necessary to promote the acture role that acquisitive prescription plays in the present lawsuit. We will magnify a role of acquisitive prescription by developing a more appropriate reconstruction of acquisitive prescription in the face of a real estate registration system with such unreliable circumstance as demonstrated by these causes.

目次 = ⅰ 第一章 序論 = 1 第1節 硏究의 目的 = 1 第2節 硏究의 範圍 및 方法 = 3 第二章 取得時效制度의 槪觀 = 5 第1節 沿革 = 5 Ⅰ. 로마法 = 5 Ⅱ. 獨逸民法 = 8 Ⅲ. 英美民法 = 9 Ⅳ. 日本民法 = 10 第2節 取得時效의 主體와 對象 = 11 Ⅰ. 主體 = 11 Ⅱ. 對象 = 12 第3節 우리 民法上 取得時效制度의 特徵 = 17 Ⅰ. 系譜的 特徵 = 17 Ⅱ. 立法的 妥當性 = 18 Ⅲ. 解釋上의 問題 = 20 第三章 登記制度와 取得時效 = 21 第1節 登記制度의 浴革 및 機能 = 21 Ⅰ. 沿革 = 21 Ⅱ. 機能 = 21 第2節 各國의 不動産登記制度 = 22 Ⅰ. 獨逸 = 22 Ⅱ. 英美法 = 24 Ⅲ. 日本 = 26 第3節 우리 나라의 登記制度 = 27 Ⅰ. 沿革 = 27 Ⅱ. 現行 不動産登記制度의 基本原理 = 28 Ⅲ. 現行 不動産登記法上의 覺記制度의 問題點과 改善方向 = 32 Ⅳ. 取得時效와 登記와의 關係 = 35 第四章 民法 第245條의 爭點에 관한 判例 動向 = 37 第1節 槪觀 = 37 第2節 民法 第245條 第1項의 要件 = 37 Ⅰ. 所有의 意思로 하는 占有 = 37 Ⅱ. 占有의 平穩 · 公然性 = 44 Ⅲ. 取得時效 期間 = 48 Ⅳ. 登記 = 54 第3節 取得時效期間滿了의 效果 = 55 Ⅰ. 登記請求權의 發生 = 55 Ⅱ. 所有權의 確定的 取得 = 59 Ⅲ. 登記 없이 占有取得時效期間만을 完成한 者의 地位 = 63 Ⅳ. 登記簿取得時效에 관한 判例 = 65 第五章 無斷占有의 自主占有性과 取得時效 = 70 第1節 序 = 70 第2節 各國의 取得時效와 自主占有에