시효취득자와 제3자와의 법률관계에 관하여 -대법원 2009.7.16. 선고 2007다15172,15189 전원합의체 판결을 중심으로-

Abstract

Acquisitive prescription is a method of acquiring property by meeting statutory requirements of continuous possession. In order for someone to acquire ownership of real estate belonging to another, under paragraph 1 of Article 245 of the Korean Civil Code, he or she has to possess real estate belonging to another for a period of twenty years without disturbance and concealment and register his or her title in record books managed by the court. It is known as acquisitive prescription, compared to record prescription. According to this paragraph, a person satisfying these provision requirements does not acquire true ownership of real estate at issue until he or she has registered as the owner. Before he or she registers as an owner, if the owner of the real estate is changed, he or she cannot acquire its ownership. In this regard, the starting point of the statutory acquisitive prescription period is very important. Therefore, the Korean Supreme Court does not allow him or her to choose it at his or her will, with some exception. It starts at the time when he or she begins to possess the real estate at issue. Also, if the ownership title of a real estate is transferred to another after the completion of the statutory period, a new statutory period begins again from the time when the title was transferred to another. With respect to the interpretation of Paragraph 1 of Article 245 of Korean Civil Code, these principles made by the Korean Supreme Court have been positively assessed between many Korean legal scholars. In spite of such positive assessments, since the papagraph is too obscure, it needs some legislative implementation to limit and clarify the extent of acquisitive prescription.