일본메이지민법(물권편:점유권)의 입법이유

Comments on the Motives Codifying the Meiji Civil Code (Part 2. Property Law: Right of Possession)

This article contains the full translation of reform motives of the Meiji Civil Code(the part of property law), which are based on the texts edited by HIRONAKA Toshio, Minpō Shuseian (zensampen) no Riyūsho (Yūhikaku, 1987), and adds some comments from the viewpoints of the Korean lawyer, whose legislation has been widely influenced by the European legal tradition via the Japanese legal scholarship. The provisions of a possessory right in the Meiji Civil Code shows their effort not to be fully influenced by the Japanese former Civil Code draft, and further, by the French Civil Code. The intent to own has been excluded from the concept of possession, and it requires only the intent to possess an object for its possessor’s own sake. The Right of Possession was basically not designed for the acquisition of the right of ownership but prepared to protect an actual rule over a real object. Any intent of its possessor is not required to satisfy the Right of Possession in Korean legal system. In addition, the Korean Civil Code has improved the Japanese provision of Prompt Acquisition(卽時取得) in the light of essence of Bona fide acquisition(善意取得). Although each individual provision should be examined more carefully, this shows that the Korean Civil Code concerning possession has a more logical and concise system, which definitely recognizes the object to be protected through it.