양도에 의한 선의취득과 선의취득자의 부당이득

Abstract

The “bona-fide acquisition(선의취득)” causes original acquisition of property in the formation of derivative acquisition. Naturally, the acquisition method follows the general principle of changing of rights on movable properties. So, the Article 188 to 190 of the Korean Civil Code regarding public announcement should be applied without discrimination. However, understanding the essence of the system “bona-fide acquisition” should come first. Bona-fide acquisition is known as an institution which is designed to protect a person who trusted exterior of a right, namely, possession of a movable property. But on such premise, an inference could be made as follows. A transferee who purchased the object from a lessee who pays rent statedly can insist on the bona-fide acquisition. Then, the boundary of the bona-fide acquisition would be extended substantially, which would result in the danger that acquiring from a person who does not even have the right of disposing movable property could be generalized. Adhering to the system of possession law and its publication effect in order to deal with the bona-fide acquisition is not required since the possession law in the Korean Civil Code exists essentially for the purpose of conserving the real domination for an object. Possessing an object will be sufficient enough to establish the bona-fide acquisition regardless of direct or indirect possession. Thus, either constructive delivery or transfer of restitution can constitute the bona-fide acquisition. However, in the case of coexisting possession(병존점유, Nebenbesitz)such as relations of lease, rental, and deposit, the bona-fide acquisition could not be established. Finally, bona-fide acquisition should be understood as an institute not for the protection for good faith on the exterior of a right, but for smooth trading interest. Furthermore, invasion of exclusive right could not be recognized in cases of loss and acquisition of a right caused by the bona-fide acquisition. Therefore, obligation of restitution of a party from the bona-fide acquisition can not exist.