부동산 점유취득시효 완성자의 법적지위

• 영문명: Legal Status upon Completion of a Prescription for Real Property Possession
• 발행기관: 원광대학교 법학연구소
• 저자명: 김대규(Kim, Dae-Kyoo)
• 간행물 정보: 『원광법학』제23권 제2호, 535~558쪽, 전체 23쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.09.30

영문 초록

A great number of studies have been conducted so far to determine the significance of the system for prescription of real property possession, reasons for it's existence, legislating procedures and conditions. The present study, thus, focuses exclusively on the legal status to be acquired after a prescription for real property is completed. What comes in issue firstly in terms of the legal status upon completion of a prescription for real property possession is whether the owner of a real property is able to apply for acquisition of claim for registration for the purpose of acquiring possession although he can't get the possession immediately upon completion of prescription for possession. Majority and legal precedents view such status as a thing in action, while minority supports the theory of real rights that perceives that those who complete prescription can acquire the there is also theory or actual ownership upon completion of prescription. Besides, there is also theory of legal trust in name that is deemed as a reasonable method to take advantage of theory of real fights while adjusting conflicting interests between the acquirer of prescription and the third acquirer reasonably. You may well wonder, however, if the conventional theories and judicial precedents have placed too much weight on protecting the legal status of prescription performer in terms of prescription for real property possession, compared to its relationship with the 3rd party. It is, therefore, adequate to adopt the theory of thing in action subject to the proviso that it can't be claimed whether the change in name is made before or after expiration of prescription once the title is transferred. What is important for the party who applies for registration upon completion of prescription is who will be the owner indicated on the register at the time when possession begins. This is because the Civil Law Act of Korea stipulates that it is not proper to protect the performer of prescription for a real property at the cost of the 3rd party who faithfully performs the legal obligations. What is argued in this connection secondly is if the possession acquired by the performer of prescription in terms of possession of real property is an acquisition by origin or by succession. Majority affirm it as an acquisition by origin while minority considers it an acquisition by succession. The legal precedents do not take any definite stand in this regard, inclined to siding with the acquisition by succession, thought. According to an explanation of the majority which favor acquisition by origin, the possession which constitutes basis for prescription of acquisition but is limited by the right of others(e.g. the right of region) is acquired, since all restrictions imposed upon the prior possessor whill vanish unjustly at the completion of possession under the theory of acquisition by origin. However, such explanation can't be applied to the right of others (e.g mortgage) which have nothing to do with possession. Acquisition by succession should be deemed justifiable in view of transfer registration of possession. The third issue in this context is if the right to claim for compensation in substitute will be allowed to the performer of prescription for real property possession. Although the Korean Civil Law Act does not expressly stipulate such right, theories and legal precedents in general approach to it positively. What still remains a problem awaiting solution is whether the right to claim for compensation in substitute can also be given to the prescription of real property possession. In this regard, theories are divided into positive and negative standpoints and legal precedents are not consistent, either. It seems, however, appropriate to recognize the right to claim for compensation in substitute when the performer of prescription has claimed the acquisition by prescription for reason of completion of prescription or has already exercised the rig

목차

Ⅰ. 서 설

Ⅱ. 원소유권자와 취득시효완성자와의 법률관계

Ⅲ. 취득시효완성자와 제한물권자와의 법률관계

Ⅳ. 결 론

참고문헌

Abstract

키워드

점유취득시효 승계취득설 원시취득설 추단권원설 물권적 기대권설 소유권설 취득시효관계설 등기청구권 prescription of real property possession acquisition by prescription original acquisition acquisition by succession right of a claim for registration theory of ownership of real property. theory of anticipation right