取得時效의 要件으로서 自主占有에 관한 批判的 檢討

What we would like to declare on this paper is as follows. First, whether possession is hostile or not has to be externally and objectively determined by the character of the title which is the cause of the possessory acquisition or by every reasons which are related to possession, not by inward intent will. Therefore the fact of hostile possession has to be determined by the character of the title when the title is clear objectively. Second, considering aprioristically we may not apply the assumptive provision of hostile possession, clause 1 of article 197 of the Civil Law when we interpret article 245 of the Civil Law. Third, in case the possessor claims the sale which is the title of hostile possession but fails to prove it, he must be losing the case because he can't claim the assumption of article 197 and fails to prove the hostile possession. Forth, even though the assumptive provision of hostile possession on clause 1 of article 197 of the Civil Law is applied when we interpret article 245 of the Civil Law according to the common view or the precedent, the right title must be proved by the claimant(possessor). Fifth, since the malicious exclusive possession without notice is considered that the title of possession is clarified but the character of title isn't, the assumption of the hostile possession is still maintained. But in this case we just can break the assumption of the hostile possession by the objective circumstances, namely the situations that he did not act what he must do if he is owner(i.e. the registry demand), or he did act what he might do if he isn't owner.