부동산의 점유취득시효에 관한 연구-판례를 중심으로-

Abstract

Acquisitive prescription refers to where a person occupies a real property for a certain period of time and law recognizes his act of occupation and eventually recognizes the right to take ownership of the property by the occupant. The Clause 1 in Section 245 of the Civil Law provides that a person who peacefully occupies a real property for twenty years with the intention of ownership may register the property and take ownership thereof." and the Clause 2 in Section 245.2 provides "If a person who peacefully occupier property for ten years with no defect with a good intention of owning it, then he may take ownership of the property by registering it." that it authorizes the acquisitive prescription by occupation of real property. The acquisitive prescription referred to the Clause 1 in Section 245 of the Civil Law is different from the legal effect that begins to take place as of the time of acquisition, which is evidenced by registration on the registry. The section provides that a passage of time only gives the occupant the right to request for registration and based on this right to register, the legality of the acquisition of ownership is recognized. There is a legal theory with regards to the acquisitive prescription, which is earning ownership of real property by occupation – that based on Civil Law Section 245 the right to request for registering is generated. There is a different theory that completion of the acquisitive prescription gives rise to an expected right to ownership and consequently a right to request for registering the property is generated. There have been legal precedents that even after the acquisitive prescription, if there is a change in the registered ownership per registry, the acquirer by the act of the acquisitive prescription cannot defend against the third party, who is the new registered owner per registry. The judicial decision takes the approach of interpreting the case as a situation of creditor and debtor in their interpretation. The intent in the acquisitive prescription is to legalize the occupation. However, the legal precedent does attempt to protect the right of the interested third party in interpreting the acquisitive prescription. In the acquisitive prescription, when the owner of a real property disposes of the real property when home steading is perfected, he will be liable for damages. The occupant will have difficulty in taking ownership by reason of perfecting the acquisitive prescription. In this situation, to stabilize the lawful order of the society and to resolve the conflict among the parties, this study aims to compare and examine the conditions for the acquisitive prescription, legal relationships, and legal relationship with a third party