점유취득시효와 등기의 조화 -대법원 2009. 7.16. 선고 2007다15172, 15189 전원합의체 판결을 계기로-

Abstract

This study focuses on the harmonization between prescription by possession and registration in field of real property in Korea. The Article 245(1) of the Korean Civil Law grant the ownership title through recording process to the possessor who has occupied the real property over 20 years in conviction of apparent self-ownership. The prescription by possession transfers the nominal owner in register book to the possessor. This produces some legal problems against the recording principle in the article 186 of the Korean Civil Law. Here is the new but typical case. According to the fact-finding, the land has been used by the Possessor, defendant who believes that he has bought the land in 1961. Actually the land belonged to his neighbor, nominal owner at that time. Possessor, however, fell into an error about self-ownership like the seller. The land has been transferred several times. First transfer was in 1982, and the second but last transfer in 1988. In 2007 the Owner, plaintiff sued the court for the recovery of his property against the Possessor. Last July 16 the Korean Supreme Court hold that Possessor has the claim to register against the Owner. The first prescription by possession brought to completion in 1981 but lost effect because of the first transfer in 1982. The second prescription by possession completed in 2002 in despite of the second transfer in 1988. The majority opinion in the supreme court changed his own past jurisdiction that the second prescription by possession could bring to completion without any transfer in new 20 years. The dissenting opinion refuted that the majority opinion ruined and jeopardized the registering principle in Korean Civil Law, as well as 5 principles in case law. Supplementary opinion get along with the majority opinion. The recent grand jurisdiction reflects the difference in view of prescription by possession of real property. In other word, it matter that we could judge the priority between the Possessor and the Owner. Now this paper recommend the supplementary opinion by the chief justice in solving this problem. The court made an effort to harmonize the prescription by possession and registering principle by developing the 5 principles in case law. But the true nature of prescription by possession should not been ruined by overwhelming of registering principle. In conclusion, the majority opinion in the Korean Supreme Court makes sense in that it could play a rule of developing the case law with respect to the purpose of prescription by possession of property. And it has a resonable solution to the gap-filling of registering principles by the efficient function of prescription by possession. However, it couldn't explain anymore why the start time of second possession is the registering time by the third acquisitor. And its opinion of autonomous possession makes no sense. I think case-by-case method will be better to some kinds of dispute between prescription by possession of property and registration of property. Furthermore, I suggest that the Korean law of prescription by possession should be reformed to be admitted in the only unregistered property.