점유의 기원과 그 유형들

Abstract

This study examines how the concept of possession in Roman law evolved, particularly focusing on how the two distinct concepts of possessio and usus influenced modern civil law's possession system. In Roman law, possession developed into two major concepts: possessio and usus. Possessio originally referred to a patriarch's factual control over public land (ager publicus) and had a public law character. In contrast, usus was a concept of private law nature, primarily developing in relation to acquisitive prescription(usucapio). Roman possession law changed over time. Before the classical period, possession was divided into civil possession (civilis possessio) and natural possession (naturalis possessio). Civil possession referred to possession with just cause (iusta causa possessionis) and was a requirement for acquisitive prescription. Natural possession meant holding things in usufruct or lease relationships. Some of these were recognized and protected by magistrates. Particularly noteworthy are the two systems of possession protection in Roman law. One was protection through interdict (interdictum), and the other was protection through usucaption (usucapio). The interdict was a magistrate's order protecting possessors from dispossession or interference. Usucaption was a system allowing good-faith possessors to acquire ownership after a certain period. In conclusion, while Roman law's possessio and usus developed in different contexts, they ultimately functioned for the same purpose: the use and control of land in an agricultural society. The fusion and development of these two concepts significantly influenced the dual nature of modern civil law's possession system - protection of factual control states and its function as a requirement for acquiring rights. This is particularly evident in Korean Civil Code's possessory protection claims (Articles 204-206) and acquisitive prescription (Articles 245-246).