취득시효상의 자주점유의 해석과 헌법상 재산권의 보장

According to the Korean Civil Code, Paragraph 1 of Article 197 stipulates; A possessor is presumed to be in possession openly, peaceably, in good faith, and with the intention of holding as owner. According to the Korean Civil Code, Paragraph 1 of Article 245 stipulates; A person who has for twenty years peaceably and openly held possession of an immovable with an intention to own it, shall acquire the ownership by making registration thereof. Because the possessor of property is presumed to be in possession with the intention to hold such property as owner pursuant to Paragraph 1 of Article 197 of the Civil Code, a possessor who claims an acquisitive prescription does not bear the burden to prove the intention to hold as owner, instead, a person who negates the consummation of acquisitive prescription claiming the possession of such possessor as the possession without intention to own bears the burden of proof thereon. In case of the acquisitive prescription of real property, whether a possession is with or without the intention to hold such real property as the owner shall not be determined by the possessor's internal or subjective state of mind but shall rather be determined externally and objectively by the nature of the source of right of acquisition of the possession or other circumstances related to the possession. Thus, the presumption of possession with the intention to own shall be reversed when it is proven that the possessor commenced the possession based on the source of right appearing to be accompanied with no intention of ownership in light of its nature or when it is proved that the possessor does not have the intention to possess by excluding another person's ownership based on the external and objective circumstances, including the circumstances where the possessor does not have the intention to exercise an exclusive control by excluding another person's ownership as if the subject were his or her property. Therefore, when it is proved that the possessor occupied certain real property owned by another person, without permission, knowing that there existed no juristic act or other legal requirements for the acquisition of ownership at the time of the commencement of the possession, it shall be deemed that the possessor did not have the intention to possess excluding the ownership of others and, thus, the presumption of possession with an intention to own shall be reversed. But according to the Korean Constitution, the first of Article 23 stipulates; The right of property of all citizens shall be guaranteed. The contents and limitations thereof shall be determined by Act. the second of Article 23 stipulates; The exercise of property rights shall conform to the public welfare. The third of Article 23 stipulates; Expropriation, use or restriction of private property from public necessity and compensation therefor shall be governed by Act: Provided, That in such a case, just compensation shall be paid. And then according to the Korean Constitution, the second of Article 37 stipulates; The freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated. The Korean Constitution, the latter of Article 10 stipulates; It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals. So that nation and local government should suggest document about acquired process of land, if not, they burdened disadvantages.