不動産 取得 時效에 관한 硏究 : 民法 第245條를 중심으로

민법상 부동산 취득시효의 정당성과 해석을 연구했다.

This study aims examining the rightfulness of acquisitive prescription system and the examples of legislation like that in foreign countries, and then trying to construct a new principle of law, surveying the judicial precedent related to interpretation of our civil law Article 245 Clause 1 on the possessed acquisitive prescription of real estate, based on this examination. Though the basic form of our civil law Article 245 Clause 1 has been influenced by the civil law of Germany and Switzerland, the difference is that the object in our civil law is limited to the registered real estate whose ownership is clear and the participation of the court is excluded.

While their civil laws require the registration after the affirmation of a court such as the judgement of depriving rights, the permission of a court, the disposal of a judge, etc. for unregistered real estate or unclear ownership of real estate only, our civil law not only contains the registered real estate whose ownership is clear but also requires just a registration exclusive of participation of a court for the affirmation of acquisitive prescription. The deletion of by registering may cause the confusion of registration system in that it is difficult to specify the necessary condition of the possessed acquisitive prescription of real estate.

And then the registration of the third person after the period of prescription can be canceled at any time. So considered all things, the phrase of by registering is a valid prescription for the control of interests between prescription acquisitive person and a third person in relation to the principle of formalism in our civil law as long as the possessed acquisitive prescription of real estate is recognized. The legal characteristic of the right of registration claims caused by possessed acquisitive prescription of real estate in our civil law Article 245 Clause 1 may be the right of credit claims.

Therefore, it is reasonable that the registration must have the form of transfer registration and possessed acquisitive prescription of real estate can be regarded as the origin of prescription in the case. Regarding the objects of acquisitive prescription, the individual property becomes one of them. But it is desirable to repeal this provision so that the nation can acquire prescription for real estate of the individual property according to it. The standard of judgment of intention of property depends on the nature of the origin of right. The standard of the origin of right lies in the origin of possessed acquisition itself like the contention of prescription acquisitive person.

In the case that the origin of right is unclear, autonomous possession is presumed. And then three stages for a change of supporting responsibility should be clearly classified so that the other party may reverse the presumption of autonomous possession. As there is no enactment in the registration law of real estate about the form or procedure of registration as the requisite of possessed acquisitive prescription, problems of such a form and procedure remain. At present the already registered real estate has the form of transfer registration of property ownership in practical business affairs.

However, the defect of the legislation should be supplemented by preparing for the enactment in the registration law of real estate through a careful examination as soon as possible.

Ⅰ. 序論 = 1 1. 硏究의 目的 = 1 2. 硏究의 方法 및 範圍 = 3 Ⅱ. 取得時效의 沿革과 各國의 立法例 = 4 1. 取得時效制度의 意義 및 沿革 = 4 1) 意義 = 4 2) 沿革 = 6 2. 取得時效制度의 立法例 = 12 1) 獨逸民法 = 12 2) 日本民法 = 17 3) 英美法 = 19 4) 우리나라 民法의 取得時效 = 22 5) 結言 = 28 Ⅲ. 取得時效制度의 法制的 考察 = 29 1. 取得時效制度의 存在理由 = 29 1) 序論 = 29 2) 取得時效制度 存在理由에 관한 判例와 學說의 檢討 = 29 3) 時效制度의 存在意義 = 33 2. 取得時效의 主體와 對象 = 34 1) 主體 = 34 2) 對象 = 35 Ⅳ. 民法 第245條의 解釋論的 檢討 = 41 1. 槪觀 = 41 2. 民法 第245條 第1項 의 要件 = 41 1) 所有의 意思로 하는 占有 = 41 2) 占有의 平穩 公然性 = 47 3) 取得時效 期間 = 51 3. 取得時效 期間滿了의 效果 = 57 1) 登記請求權의 發生 = 57 2) 所有權의 確定的 取得 = 61 3) 登記 없이 登記取得時效期間만을 完成한 者의 地位 = 64 4) 登記簿 取得時效에 관한 判例 = 66 4. 時效完成者와 第 3者와의 關係 = 70 1) 時效取得과 登記前의 權利狀態 = 70 2) 大法院判例 = 73 3) 大法院判例에 대한 批判的 檢討 = 76 Ⅴ. 結論 = 79 參考文獻 = 82 ABSTRACT = 87