자기 소유 부동산에 대한 시효취득의 인정여부 - 목적론적 축소해석의 한계를 벗어난 요건론적 제한에 대한 비판과 소급효의 시적 한계를 통한 효과론적 해결의 모색 -

자기 소유 부동산의 시효취득 인정 여부와 법적 효과를 검토했다.

Article 162 of the former Civil Code applied in Korea expressly designated “the property of another” as the object of acquisitive prescription, whereas Article 245 of the current Korean Civil Act refers only to “real property.” This textual change has given rise to a long-standing controversy over whether one’s own real property may be acquired by prescription. The Supreme Court of Korea initially answered in the affirmative, but has more recently handed down a series of judgments denying such acquisition, culminating in its decision of 28 July 2022 (2017Da204629), which announced a doctrine of denial in principle subject to exceptional recognition.

The Court has nonetheless declined to overrule its earlier affirmative precedents, so that mutually inconsistent lines of authority continue to coexist. In most of the cases denying acquisition, the possessor invoked acquisitive prescription in order to escape an attachment that had encumbered the property before possession commenced or the risk of compulsory execution. The Court’s underlying concern with blocking such attempts is well founded.

Yet judicially creating a requirement of “otherness,” which Article 245 does not contain, is vulnerable to the criticism that it constitutes lawmaking exceeding the limits of teleological reduction; the scope of the exception remains indeterminate; and the doctrine unduly narrows the operation of acquisitive prescription based on registration. This article demonstrates that the same conclusion can be reached without denying, at the requirement stage, acquisitive prescription of one’s own real property, as the recent case law does.

With respect to the effect of acquisitive prescription in particular, Article 247(1) provides that the effect of acquisition of ownership is retroactive to “the time possession commenced,” thereby fixing the starting point of retroactivity within the statutory text itself; encumbrances that existed before possession commenced therefore fall outside the temporal reach of retroactivity and do not extinguish.

On this basis, the cases concerning attachments predating possession (2016Da224596; 2017Da204629) are resolved by the temporal limit of retroactivity; the fraudulent transfer case (2013Da206313) by the conversion into possession without intent to own upon the finality of the adverse judgment; and the mutual title trust case (2007Da83632) by the rules governing succession to sectional co-ownership or the principle of good faith.

In the end, without creating a requirement absent from the statutory text, these cases can be fully resolved by the temporal limit of retroactivity grounded in the text of Article 247(1) together with the established doctrine on the requirements of acquisitive prescription.