取得時效에서의 占用權과 相當性

Abstract

According to the provision 245 of the Korean Civil Law, a person who has for 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 lawsuit practices concerning acquisitive prescription, one of the most critical issues is proving the autonomous possession. According to judicial precedents in the Korean Supreme Court, the other party of the acquisitive prescription, the owner, should assume the burden of proof for a possessor’s heteronomous possession. However, it is practically difficult, it is observed, for the owner to prove the possessor’s heteronomous possession. As such, in an effort to mitigate the other party’s burden of proof, the Korean Supreme Court suggests that the external and objective circumstances may be considered in such a case. As practical means of the external and objective circumstances, the Korean Supreme Court suggests a possession right theory and a theory base on significance (of the ratio of trespass area to ownership area). Although the possession right theory appears to be a good basis for the external and objective circumstances, it reveals a problem when the ratio of trespass area to ownership area is significantly large. In such a situation, it is reasonable to suppose that the possessor knowingly trespasses at the time of the initial purchase or initial possession of the property. Therefore, when the ratio of trespass area to ownership area is significant, it seems to be more appropriate to regard it as the possessor’s heteronomous possession. As such, it appears that the theory based on significance subsumes the possession right theory.