점유의 권리성과 점유권 양도에 관한 고찰 -【송덕수, “점유권 양도의 허구성과 민법 제196조의 개정제안”, 「민사법학」 제91호(한국민사법학회, 2020.6)】을 중심으로 -

Abstract

Korean Civil Act(‘KCA’) Art. 196 provides for the assignment of possessory right. Paragraph (1) provides for the assignment of possessory right through de facto control over a thing, and paragraph (2) provides for the assignment of possessory right through summary assignment, agreement on possession, assignment of claim for return of thing. Meanwhile, a person who obtained possession under KCA Art. 192 shall acquire the possessory right. Therefore, Art. 196 KCA is unnecessary because the possessory right shall be assigned to the assignee without KCA Art. 192(1) if de facto control is transferred to the assignee. KCA Art. 188(2) of a summary assignment, KCA Art. 189 of an agreement on possession, KCA Art. 190 of an assignment of claim for return of thing shall apply mutatis mutandis to the Art. 196 and this enables the assignment of possessory right without the delivery of a thing. Among these, the provision of the assignment of possessory right by way of the assignment of claim for return of thing, i.e., assignment of indirect possessory right is necessary, but provisions of the assignment of possessory right through the agreement on possession and summary assignment are unnecessary. In case of a summary assignment, the assignee who has de facto control already has possessory right. Consequently it is unnecessary to assign the possessory right to the assignee who already has possessory right. In case of agreement on possession, the assignee of the possessory right acquires indirect possessory right under the contract between the assignor and the assignee. However, KCA Art. 194 provides for indirect possessory right, and the assignee can acquire the indirect possessory right under this Article. Even if there is no provision about the agreement on possession, the possessory right can be acquired under KCA Art. 194. Therefore, it is reasonable to delete Article 196 of the Civil Code, except for the assignment of the possessory right through the assignment of claim for return of thing. Furthermore, the problems of KCA Art. 196 is derived from the concept of possessory right, which means the possession is a fact or a right. The concept of possessory right should not be recognised separately from the possession, because if there is a possession, it always results in the possessory right.