취득시효의 존재이유와 소유의 의사에 대한 비교법적 검토

Abstract

This paper explain the reason for being of the adverse possession and ownership's intent in German law, Japan law, France law and Korea law. This paper's goal also focus on opening the objective consideration of the reason for being of the adverse possession and ownership's intention. In France law, there are several theories about the adverse possession. But the adverse possession system generally is focus on the preservation of social order in France law. Here the problem is how to preserve the social order. The adverse possession is not for the protection of the formal owner, but for real owner with ownership title. The ownership's intent is comprised of la corpus and l'animus. La corpus means the possession condition to get the ownership and l'animus means but the possession intention. The adverse possession in Japan law got a great effect through the adverse possession in France law. The reason for being of the adverse possession is found on the preservation of the public interest and the lost of the ownership because of doing nothing as the owner for a long time. In Japan law, the ownership's intention refers to the real exercising of the exclusive possession like owner; it is called "hostile possession". In German law, the adverse possession is based on transaction safety, legal stability, reducing social-economic expenditure and unifying registration and current right. Anyway, ownership's intention(Eigentumswille) means hostile possession. Unfortunately, the presumptive article about the hostile possession is not found in German civil act(BGB). In Korea are there several academic opinions on the reason for being of the adverse possession. But Korea supreme court has a opinion which the adverse possession is based on the legal stability. Two deferent opinions(subjective and objective) about the ownership's intention exist in Korea. According to the decision of Korea supreme court, the ownership's intention is defined objectively and externally by considering all situations related with the character of the possession' title or the possession. Also the reason for being and the goal of the adverse possession should be focus on the protection of real owner and the adverse possession also has to correspond with the legal stability. Because of this, the decision of the Korea supreme court on the ownership's intention need to be considered. Finally, through the comparative study on above stated contents should be exactly catched Korea legal problems and then be considered the adverse possession system under the change system about the real right in Korea.