事實的 所有權의 槪念과 그 保護

A notion and Protection of Real Possessory Rights．

Korean Civil Code recognizes the formalism in realty fluctuation. The precedent case law, however, has recognized that a truster is able to declare practical possessive rights against a trustee without necessary legal registration regarding nominal trust. Moreover, it acknowledges the principle of “Real Possessor in control status of a person who really occupies and uses the property based on assignment security and legal possessory ground. It gives the Real Possessor the legal ground to dispose the property between realty transaction parties or against the third party to a limited extent. In addition, the positive law regulates real rights and obligations of the Real Possessor by recognizing the Real Possessor and the “Real Possessed Property In this article, I focused on the principles of substantial and real possession and the legislative intent under the precedent case law and under the positive law. Moreover, I inquire the limits on its application under the formalism of Korean Civil Code. Hereupon, among the attitudes of precedent case law and positive law, the precedent case law contends that an acquisitor of non-registration and non-permission building, notwithstanding the assignee of non-permission building, unless the transfer registration of ownership is complected, the ownership of the building can not be acquired. such assignee can not be seen as customary law of rent property rights applied to mutatis mutandis ownership right. Regarding ownership transfer by trust theory or possession right by ownership title, to recognize actual or practical ownership ｣is inappropriate. The contend follows as; First, real possessory right or practical right is defined that it has actual requirements of ownership acquisition, both trust ownership transfer and actual control of object by ownership title, without making a detour of anticipation right of real property through completion of legal requirement of cause of ownership acquisition like purchase, but it has not a formal register requirement which is needed to resister his/her own name Second, the exercise of actual ownership right within control use of property, without detouring of subrogation of name of register should claim for direct hindrance exclusion against realty transaction parties as well as the third party. In the end, the application of formalism of korean civil code should find a meaning which is not acknowledged in simply a real property change only by agreement of real property right but it is a ground of ownership, namely in a delivery of object and agreement of real property right.