登記請求權과 消滅時效

• 영문명: Right of Claim for Registration and Extinctive Prescription
• 발행기관: 조선대학교 법학연구원
• 저자명: 박찬주(Park, Chan-Ju)
• 간행물 정보: 『법학논총』제15권 제1호, 119~141쪽, 전체 23쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.03.30

영문 초록

The problem that the right of claim for registration is the object of extinctive prescription depends on whether the characteristic of the claim is thing-obligatory or claim-obligatory. As thing-obligatory right as one competence of ownership does not become complete, so does thing-obligatory right of claim for registration not become complete. is the standpoint of majority and the court's view. Purchaser's right of claim for registration who has not been completed the registration process belongs to claim-obligatory right for registration. So the purchaser's claim-obligatory right for registration is the object of extinctive prescription principally, and its period of time is 10 years(Civil Act 162 0)). Then what is the position of purchaser's right of claim who has taken possession? Does the purchaser's right also become extinctive after the prescription period? The Supreme Court says 'no'. But the ground differs between the majority opinions and minority ones. Majority opinions search the ground of extinctive prescription from the maxim "He who sleeps on the right cannot be protected", and do not treat the purchaser who has taken the possession as sleeper on the right. Contra wise, one minority but convincing opinions bases on the acknowledgment theory. Civil Act H68 which provides acknowledgment as one of interrupting cause of extinctive prescription . Minority opinions treat the seller's delivery of possession as acknowledgment of obligation for registration. The Supreme Court also deny to apply the completion principle of extinctive prescription to the right of claim for registration based on adverse possession. Scholars set UP various theories on non-completion ground. The writer pursues its ground from the doctrine of prohibition of abuse of normative system. Seller's denying of registration abuses the registration system. Civil Act §l86 provides effectuation of ownership acquisition takes place after registration. The writer basing on the doctrine of prohibition of abuse make it clear right of claim for return does not correspond to abuse of normative system if the purchaser or subsequent purchaser loses not only possession of real property but the right of claim for return and if purchaser's right of claim for registration has been lost its effect due to completion of extinctive prescription. But more important point is relation between allegation of extinctive prescription and principle of pleading. Civil Act professors do not pay heed to this point yet. If we lay emphasis on the importance of the principle of pleading, judges will reject the plaintiff's mistaken allegation of starting point of computing extinctive prescription though the extinctive prescription has been completed based on the true starting point. Precedents are comparatively lenient about starting point of acquisition by adverse possession, and the writer asserts the same principle should be applied to extinctive prescription.

목차

I. 消滅時效의 對象

II. 所有權에 기한 登記請求權

III. 妨害排除請求權 이외의 所有權移轉登記求權

IV. 消滅時效의 主張

V. 맺음말

키워드

소멸시효 등기청구권 물권행위 물권적 기대권 매각되어 인도된 물건의 항변 변론주의 extinctive period right of claim for registration act causing transfer of real right right of real expectation exceptio rei venditae et traditae principle of pleading.