한국민법에 있어서 취득시효 완성의 효과

• 영문명: Effect of the Adverse Possession in Korean Civil Code
• 발행기관: 한국민사법학회
• 저자명: 이기용(Lee, Ki-Yong)
• 간행물 정보: 『민사법학』제37호, 3~38쪽, 전체 36쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2007.06.30

영문 초록

In Korea a successful Adverse Possessor cannot be a owner without registering his right to Land Recording even though he possessed the land during the requisite time period with required qualities of the Adverse Possession. That is caused by particularity of Korean Civil Code §245.Ⅰ. referring to “acquire rear property by registering his title to Land Recording . Such Statutes dealing with Adverse Possession is a rare legal system in a view of comparative law. Korean Civil Code §245.Ⅰ is derived from Roman Law, called ‘Usucapion like other European Laws, but it was modified and designed subtly by the legislator, the Chief Justice of Korean Supreme Court Byungro Kim. Because of the uncertainty of Korean Civil Code §245.Ⅰ, so many problems of law and dispute are occurring and precedents come into conflict with each cases in some aspects. Therefore many scholars and lawyers are try to explain that problems logically and clearly. Some of them and Korean Supreme Court agreed to a conclusion that Adverse Possessor cannot be a owner without registering because of the Korean Civil Code §245.Ⅰ. But I think that interpretation of §245.Ⅰ. is not correct and is not a appropriate way to regulate privity. Historically and substantially the Adverse Possession is irrelevantly developed and creates a new and complete title in the possessor by itself. And the Adverse Possession does not transfer the former owner s title to the present possessor. So, if the possession has satisfied those elements like 20 years duration of time, open and notorious and etc. but registering, it would be better to interpret that the Adverse Possessor should become a owner in spite of the legislative restriction. In my opinion, that will be a succinct legal theory to solve the confused problems of Adverse Possession and to reach reasonable consequences.

목차

Ⅰ. 서 - 취득시효의 법리에 관한 그간의 검토와 과제

Ⅱ. 시효완성자 甲과 등기명의자 乙의 법적 지위

Ⅲ. 결

키워드

Civil Code §245 the Adverse Possessor Land Recording Third Grantee Restitution Tort Ownership Owner Interpretation