자주점유 추정의 삭제에 대한 검토 – 판례를 중심으로 -

Abstract

At first, Korea Supreme Court acknowledged relatively the concept of the possession to own than in the past. But 1997 this Court provided more intensively concept of the possession to own. Through this case the acquisition of the ownership also is restricted in the lawsuit concerning with possession without permission. Unfortunately, under this case exists problems about the legal principle of the acquisitive prescription with possession of the real property, the nature of the possession to own without permission, existence and inexistence of the acquisitive prescription with possession of the real property, public confidence of the registration. Thus the revision of the acquisitive prescription with possession of the real property and the article 197 I of Korea Civil Act are suggested. Article 197 I of Korea Civil Act was affected by Japan Civil Act which was adopted France Civil Act. But Korea Civil Act has a formalism on the transfer of real right in different with Japan and France Civil Act which have the rule of intention on the transfer of real right. Therefore, the concept the possession to own, it’s scope of application and problems through applying the acquisitive prescription with possession of the real property stand. Concerning those problems the Korea case interpreted more intensively the presumption of the possession to own and the acquisitive prescription with possession of the real property. Nevertheless, a few scholar of civil act argued that Korea Supreme Court protects strongly the person who makes the acquisitive prescription with possession to own of the real property in article 245 I of Korea Civil Act. However, article 197 I of Korea Civil Act has to be applied only on movable assets and property right of immovable assets and the presumption of the possession to own. If there is a unclear of the possession’s title, this possession become the possession without the intention to own. Also, this case directly links to the reverse of the possession to own. Finally, because it exists the disputation on the acquisitive prescription of real property concerning the presumption of possession with the intention to own, the exclusion of the only acquisitive prescription of real property in the case of applying the article 245 I of Korea Civil Act.