부동산 취득시효 관련 판례 5원칙에 관한 연구

A Study on ‘5 principles’ of the Korean Supreme Court regarding an acquisitive prescription of real estates

The primary purposes of this study were to; 1) examine the ‘5 principles’ which the Korean Supreme Court has adhered to apply regarding an acquisitive prescription of real estates; 2) review the Korean principle theories respecting the ‘5 principles’; 3) compare the Korean ‘5 principles’ with the Japanese ‘5 principles’; and 4) review the application scope of the Japanese Civil Act article 177. Major findings are as follows: First, the ‘5 principles’ simply followed the Japanese ‘5 principles’ which were devised to clarify the application scope of the Japanese Civil Act article 177. Second, the Korean major theories were captivated by the false proposition the Korean Supreme Court provided: An acquisitive prescription claimant should need the 3rd principles since a claim for registration is defined as contractual rights according to the Korean Civil Act article 245(1). Third, the Korean legal scholars failed to appreciate that Korean precedents and theories have to be different from the Japanese in dealing with the issues of acquisitive prescription because the Korean codes were enacted differently from the Japanese codes. The findings suggest that the existing principle theories failed to solve the issues regarding the Korean acquisitive prescription. Accordingly, the researcher concluded this study by proposing the theory of analysing the Korean Civil codes of acquisitive prescription, in particular, the Korean Civil Act article 245(1) and 247(1).