점유권의 상속

• 영문명: Succession of the Possession Right in Korea
• 발행기관: 한국가족법학회
• 저자명: 윤부찬(Bu-chan Yoon)
• 간행물 정보: 『가족법연구』가족법연구 제19권 2호, 371~401쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.09.01

영문 초록

Korean Civil Code has been heavily influenced by continental law; especially German and French civil laws. Korea was ruled by Japan and took advantage of the work done by Japanese redactors. But the provision of the succession of possession is not alike German and Japanese Civil Codes. Korean and German Civil Codes provide that the right of possession should be succeeded to the successors at the time of the ancestors' death. But Japan Civil Code has no parallel provisions, so there has been a great deal of debate over the possibility of succession of the possession right. In this article, I make an examination over the articles of Korean, German and Japanese Civil Codes to reveal the differences in succession of possession among them. The conclusion is that German Code appreciates the possession not so much as a right to the fact. So, in Germany, the fictional provision to success the possession after decedent's death is inevitable to success the fact. But Korean Civil Code follows the guidance that the possession is not a matter of fact but the right. From the viewpoint of that the nature of succession is the continuance of decedent's personality, Korean courts do not admit successor's own possession on inherited property even though successor excises physical control over it. This is unfavorable to acquisitive prescription of successors. So, this paper suggests that the possession, physical control on inheritance exercised by successors, should become new title of possession for successors. And the separating and merging, possessions of successor and of the inherited, should be granted for the successor acquired the physical or direct possession. According to the court, if there were several successors and physical possession was exercised by a successor, his physical possession absorbs the rest of successors' ideological possession. This position is resulted from the thought that only one physical possession can be transferred by succession. This paper tries to prove that position is not inevitable.

목차

Ⅰ. 들어가는 말

Ⅱ. 점유권의 상속성 인정연혁과 193조의 의미

Ⅲ. 점유권 상속의 제문제

Ⅳ. 맺는 말

참고문헌

Abstract