소유권 등기부취득시효의 요건과 효과 = The Requisites and Effect of The Acquistive prescription system by register book

부동산 등기부 취득시효의 성립 요건과 법적 효과를 연구했다.

If a certain state of realities is continued long, the law gives legal effects to the state and authorizes exercising his (or her) rights or the state of not exercising, regardless of the true ownership, that is a acquisitive prescription. Ownership of the civil law acquired in two ways. This is Legal action and provisions. According to the contemporary mode of the acquisition of property by legal Provisions, immovables are acquired by prescriptive acquisition. In general, since the Roman era, most of the continental countries governed by law have had provisions on acquisitive prescription.

Although the contents are different from country to country because of the countries unique circumstances, most countries use either the acquisitive prescription by occupancy or the acquisitive prescription by registration. However, our country have a very unique legal system which has provisions for both regulations. In order to discuss the subject, this study traces the prescription system to its origin and investigates the prescription system of Roman Law and Germanic Law, the acquisitive prescription systems of each country together with its historical backgrounds, and the legislative examples through their actual operation conditions.

In Korean Civil Law, the clause 1 of the article 245 stipulates that if a person has occupied a property publicly for 20 years with the intent of possession, he (or she) can acquire the ownership by registering. And the clause 2 of the article 245 stipulates that if a person registered a property and has property publicly with the intent of possession for 10 years, with the good intent and without committing any faults, he (or she) can acquire the ownership. As for Korea, through the government or Japan and Korean War, many owners of properties got lost, or a large amount of the register book disappeared, so it happended that the owners could not manage them.

The acquisitive prescription could be valued in a positive way, to think that the acquisitive prescription protects the third person with the good intent who trusted the registry as it is, for the public confidence of registry have no effects in our Civil Law. But, prescription system sacrifices the legal owner and protects the continued relationship of fact. It seems that the acquisitive prescription denies the basic principle of modern Civil Law, absolute protection of personal property or ownership. Thus, yet it might become an issue.

We should develop our entire theory of the construction of acquisitive prescription from a position of supporting the standing of an advocate for acquisitive prescription. Then, what is the reason of existence of prescription system? There are different opinions on this question, but it is reasonable to say that the prescription system exists to respect the relationships of occupancy, because the prescription system protects the possessor of the property rather than the legal owner. This study address the requisite and the effect of the an acquisitive prescription system by register book.

This paper deals the theoretical oppositions and trend of judicial precedents of whether tributes can be an object of acquisitive prescription, the possibilities of the acquisitive prescription of the state-owned assets. And This paper deals comparatively with an independent possession, the most important factor of the acquisitive prescription. There are many theoretical disagreements because of the concrete interpretation of the clause 2 of the article 245 of the Civil Law, and its right and the yardstick for judgment of possessive intent, and reverse and presumptive possession.

By the way, if whoever meets certain requirements, he (or she) can acquire the ownership of the property without regard to the true ground of claim. So this system could be abused by the occupant with the bad intent and, without permission. In order to prevent this absurdity, we have to make a strict application of this system, for this, the autonomous occupancy, in which one of the requisites of completion is the intent of possession, is demanded.

Then, at the time of enactment of the clause 2 of the article 245, the occupant who has occupied and used a real estate are, for the most part, the poor who do not have enough legal consciousness, so it was necessary to protect them legally but our registration system was not complete enough to protect them. The current law tends to attach importance to expression more than intention, and at present the business of a registry office can be computerized throughout the Korea.

Finally, it is a prerequisite to supplement real estate registration system including the prescription system by which an occupant can obtain ownership through procedure and registration prescribed by the law only in special case as much as other countries which adopts formalism.

Ⅰ. 머리말 1 1. 연구의 목적 1 2. 연구의 범위 및 방법 3 Ⅱ. 비교법적 고찰 4 1. 서 4 2. 로마법과 게르만법상의 취득시효제도 5 (1) 로마법 5 (2) 게르만법 5 3. 각국의 입법례 6 (1) 프랑스민법 6 (2) 독일민법 7 (3) 스위스민법 7 (4) 일본민법 8 (5) 만주민법 9 4. 우리 민법의 입법태도 10 Ⅲ. 부동산 등기부취득시효의 요건 11 1. 서설 11 2. 주체와 객체 12 (1) 주체 12 (2) 객체 13 1) 부동산의 타인성 여부 13 2) 국유재산 15 3) 부동산의 일부 17 4) 공유지분 18 3. 자주점유 19 (1) 서설 19 (2) 자주점유의 의의 19 1) 통설 19 2) 소수설 20 3) 판례 20 4) 검토 21 (3) 자주점유의 판단기준 21 1) 학설 22 2) 판례 23 3) 검토 24 4) 구체적인 경우 25 (4) 자주점유의 추정 33 1) 개설 33 2) 학설 33 3) 판례 34 4) 검토 35 (5) 자주점유의 번복 36 1) 개설 36 2) 판례 37 3) 검토 39 (6) 점유성질의 전환 41 1) 개설 41 2) 타주점유에서 자주점유로의 전환 41 3) 자주점유에서 타주점유로의 전환 45 4. 평온하고 공연한 점유 53 (1) 의의 53 (2) 입증책임 53 5. 시효취득자의 명의의 등기 54 (1) 개설 54 (2) 중복등기의 문제 55 1) 개설 55 2) 학설 57 3) 판례 58 4) 검토 59 (3) 등기승계의 문제 59 1) 개설 60 2) 학설 60 3) 판례 61 4) 검토 64 (4) 등기와 점유의 일치 65