로마법상 점유의 개념: 문제맥락에 따른 구별

The concept of possession is fundamental and significant in the law of property which governs the dominant relationship between persons and goods. Possession is basically a matter of fact (res facti), but also functions as a requirement in various legal issues. The Korean Civil Code has a separate chapter on the “Posseossory right” (jus possessionis) and provides several articles under the concept of physical control over a corporeal thing. It is an output of a long historical debate since the Middle Ages in European legal science, but its origin comes from the Roman law which separated dominium and possessio. In this article the author examines the Roman law of possession focusing on the D.41.2. As a result of the review, the following are noteworthy. Firstly, possessio in Roman law required animus domini for the intentional element by definition, unlike the Korean law. Therefore, a person through whom a physical or natural control had been acquired in the intermediary relationship was not a possessor in the legal sense but mere a detentor. The Roman jurists expressed this as “in possessione esse” rather than “possidere”. Secondly, the legal relevance of possession has to be discerned from the context of the problem. On the one hand possessio in the context of the usucapio for the acquisition of ownership required iusta causa and bona fides. On the other hand possessio ad interdicta dealt with in the context of the protection of possession against any disturbance required “nec vi nec clam nec precario”. Its implications for the problems of possession under the civil law can be then more elucidated and intelligible.