점유권과 상속의 교착에 관한 소고

• 영문명: A Study on the Complication of the Possession Right and the Inheritance
• 발행기관: 원광대학교 법학연구소
• 저자명: 김기영(Kim, Gi-Young)
• 간행물 정보: 『원광법학』제24권 제3호, 377~397쪽, 전체 20쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.09.30

영문 초록

Concerning the matter which is related with a possessive inheritance, it is based on the point of view whether we take a possession as a fact or a right. This old debate relating with an inheritance is linked with the matter-whether we emphasize a possession or an inheritance, futhermore, whether an inheritance is regarded as a personality succession or a right succession. According to our Civil Law, the possession includes both a fact and a right, and the inheritance includes both a personality succession and a right succession at the same time. In the mean time, an inheritance of possession right for the inheritor who acquires an actual possession is decided on if the inherent possession is admitted or not, according to whichever is taken importantly, a possession or an inheritance. An inheritance of possession right is existed in the contact point between the possession system which protects the actual control on an object and the inheritance system which succeeds the right and duty inclusively, and the construction of law is necessary to accord the both. The prevailing theory which admits the inherent possession of an inheritor is more persuasive in terms of an accordance of the possession and the inheritance, since it discriminates between the actual possession and the previous conceptional possession, and compromises the both as well. And this problem is based on the matter-whether we consider the inheritance as an inclusive succession of individual right and duty, or as a succession of an inheritor's position and personality. Buy the way, the precedent opinion is appropriate in case of only the conceptional possession right transference by the inheritance according to the Civil Law Article 193 because the inheritance itself does not change the nature of possession, but in case the inheritor acquires an actual control over the inheritance, it is considered as an acquisition of his own possession. The precedent opinion which reveals that it cannot be a new right even though the inheritor begins an actual possession, tends to a personality succession view which is a traditional concept, beyond the view-the essence of an inheritance is a succession of a individual right and duty. However, this should be reconsidered since it is not corresponding with a contemporary individual inheritance law, the possession is a system which gives a certain legal effect to an actual activity which controls the real life, and if an inheritor's possession could not be a new right, an acquisitive prescription itself is not easy in case of an inheritance, no matter how much time goes by, and to make a balance with other cases which grant the acquisitive prescription. In the end, an inheritor can acquire an actual control not through the conceptional possession embodiment but through an actual possession of an inheritor himself, and can take it as an inheritance title.

목차

Ⅰ. 서 론

Ⅱ. 점유권상속의 연혁과 요건

Ⅲ. 상속점유권의 법적 성질

Ⅳ. 점유권과 상속의 교착

Ⅴ. 결 론

참고문헌

Abstract

키워드

점유제도 점유권의 상속 점유의 분리와 병합 점유보호청구권 공동상속 Possession Right Possessio Gewere Inheritance Right to Demand Recovery of Possession