점유취득시효제도의 개정에 관한 연구 －자주점유와 무과실을 중심으로－

Abstract

The Korean Civil Code art. 235(1) provides that a person who has for a period of twenty years peaceably and openly held possession of an immovable with an intention to own it, shall acquire the ownership by making registration thereof. In addition, the Code art. 197(1) provides that a possessor is presumed to be in possession peaceably, openly, in good faith and with intention of holding as owner. This means that if a possessor proves that he or she possesses an immovable for a period of twenty years, he or she can acquire the ownership title of it. However, many scholars have criticized that such a rule is contrary to morality and justice. In 1997, the Korean Supreme Court held that where a person who possessed an immovable belonging to another in bad faith, the presumption of the art. 197(1) is broken. This means that bad faith possessors-who possess immovables knowing that they do not own it-no longer acquire other’s immovables by acquisitive prescription. However, critics pointed out that the holding lacked the theoretical ground in light of the reading of art. 197(1) of the Code. Recently, the Korean Department of Justice is revising the Korean Civil Code, and some opinions about acquisitive prescription system have been presented. This article reviewed and evaluate the opinion of the Korean Civil Code Amendment Committee. In revising provisions of acquisitive prescription, what is more important is whether or not Korea will adopt the public confidence of the recording system. Unless korea will introduce the system, it needs to maintain acquisitive prescription to protect buyers, with some changes of its elements. This article proposed as follows: with respect to immovables, it needs to delete the presumption of intention to holding as owner within art. 197(1) of the Code. In addition, it has to add the element of the possession in good faith to the art. 245(1) of the Code. However, it does not have to require possessors to acquire the possession of immovables without negligence because this can makes the acquisitive prescription system useless.