共同相續人 1人에 의한 單獨自主占有

Exclusive Autonomous Possession by One of the Coheir: focusing on the precedents and the theories in Japan

According to the judgement, Supreme Court 13 Feb 1990, Sentence 89jae-da-ka-89, the acquisitive prescription of the Civil Law Clause 245-1 has been accepted because precedents describe that the autonomous possession is presumed under normal circumstances by the Civil Law Clause 197-1 toward the logic on the attribute decision of possession by the one of coheir. However, viewed as above, it is considered that the presumption of autonomous possession by the Civil Law 197-1 has to be excluded toward the heir who possesses all of the joint heritage. That is, in case some of the coheir succeeded to the possession and continued to possess the real estate after the person who possessed it with the intention of ownership had passed, it needs to judge the ground of possession toward the one of coheir who actually possess the real estate for their acquisitive prescription of ownership on the whole real estate under normal circumstances. The possession of the one of coheir is regarded as heteronomous possession toward the possession of the rest coheir and it has to be converted heteronomous possession into autonomous possession. As in case of precedents in the supreme court, legal structure that is presumed the autonomous possession toward portion of coheir under possessing the real estate by the one of coheir is not appropriate. It seems to me that heritage is presumed as common property between the coheir (Civil Law Clause 1006), so each co-owner has the right to use the whole common property in proportion to his portion. Thus, although the one of coheir possesses the whole property, it could not be accepted his autonomous possession in case it is heteronomous possession within the scope of other portion and he show the intention of possession toward other coheir within the scope of his portion, or in case there is no proof of fact that the possession has not been restarted by other ground with the intention of ownership .