取得時效의 要件으로서의 所有의 意思

An Intention of holding as the owner in The Acquisitive Prescription

There are two types of acquisitive prescription system in Korean Civil Law; the one is an acquisitive prescription system by possession, the other is an acquisitive prescription system by register. To obtain ownership by acquisitive prescription by possession, it is required that peaceful and openly possession with intention of holding as the owner for 20 and registration. This study is focused on intention of holding as the owner. We define it as intention of exclusively holding as the owner. And, whether possession with intention of holding as the owner or not is decided not by the inner intention of possessor but by the objective characteristic of title. Article 197 of Korean Civil Law presumes that an occupant possesses by intention of holding as the owner, and the opposite must prove the reason why the presumption can be broken. It is certain that an intention of holding as the owner is only inner intention. But there is question that we decide it by a subjective intention. So whether intention of holding as the owner or not must be decided not by the inner intention but by the objective criterion. Conclusively speaking, it is right that the intention of holding as the owner must be decided by the objective characteristic of title or the circumstances connected with possession.