자주점유의 기원과 종말

Abstract

Pothier referred to ‘animus domini’ in order to make the obvious point that if a person acquires a thing in good faith on the basis of a transaction intended to transfer ownership, he would possess it with the mindset of an owner. In such a case, if the transaction turns out to be invalid for some reason, adverse possession would be possible. Pothier was thus explaining that prescription (adverse possession) would require iusta causa and bona fides. Prescription under the French Civil Code largely adopted this position. Pothier’s reference to ‘animus domini’ had nothing to do with the possessory interdict in Roman Law. However, Savigny attempted to build a universal theory of possession which would run through the two entirely different institutions of adverse possession and possessory interdict. Savigny therefore used ‘animus domini’ rather differently. He used the expression to refer to a person’s ‘intention to conduct himself as the owner’ regardless of whether he came to possess the thing on the basis of a transaction intended to transfer ownership. He put forward a hypothesis that ‘juristic possession’ may be recognised only when the possessor has such an intention to own. He believed that his hypothesis would conherently explain two aspects of the possessory interdicts, namely, i) a lessee, a slave or to a manager who possesses not for himself but on behalf of another person may not resort to possessory interdicts; and ii) a party who asserts to be the owner of thing may resort to possessory interdicts even if his possession was in bad faith or non‐peaceful. While Savigny’s theory of ‘juristic possession’ (predicated upon the so‐called ‘owner’s intention’) was originally intended mainly to explain the peculiarities of possessory interdicts, his theory came to have a decisive impact on subsequent jurists’ conception of prescription. For instance, the primary requirement for prescription (adverse possession) under the Korean Civil Code is that the possessor should have the ‘owner’s intention’. The requirements of iusta causa and bona fides, which had long been the central requirements of usucapio and prescription, have completely disappeared. As a result, legal discourse concerning adverse possession came to have an ‘amoral’ tone. A legalargument that a person who took possession of another’s property in bad faith and in the absence of a justifiable ground may nevertheless acquire ownership of the thing if such a state of affairs has continued for a certain period, is fundamentally incongruous with the ethical tenet of the Roman Law. Moreover, ‘animus domini’ as proposed by Savigny includes a person’s intention to conduct himself as the owner knowing full well that he is not the owner. Such an intention is no different from an intention to defraud. It is a deeply deplorable and disturbing argument that a civilised legal system should ‘protect’ such a wrongful intention. Fortunately, however, the Supreme Court in a recent judgment by a full court held that ‘animus domini’ should no longer be viewed as a matter of a person’s subjective state of mind but it must be assessed objectively, in light of the relevant circumstances under which the person came to possess the thing in question. The French court also held in the same manner already in 1945. In practice, this would mean that a person who came to possess a thing in the absence of a justifiable ground would now rarely be held to have the ‘animus domini’. The Supreme Court’s ruling is effectively reinstating the European legal tradition where, for more than 2000 years, iusta causa and bona fides had always been the requirements for usucapio (prescription). One may now rediscover and re‐evaluate the ethical foundation of law, which had temporarily been over‐shadowed by the sophisticated and elaborate theorising of Savigny.