동물학대자의 동물소유권 행사 제한 -동물보호법의 입법사, 그리고 민법 해석론의 검토-

In this article the author reviews the legislative history of the Animal Protection Act in relation to how to restrict the animal-abuser’s ownership on the abused animal. And from the de lege lata perspective of Korean Civil Code, the author argues that if an animal-abuser exercises a claim for return based on his ownership of the abused animal against the possessor of the abused animal who lawfully commence possession, such exercise may constitute abuse of rights. The grounds for this argument are as follows. First, the integrity of law can be secured only when the purpose of the Animal Protection Act, which criminalizes animal cruelty, is taken into account when the animal-abuser exercises his(her) ownership on the abused animal. Second, animals are living properties and one of the most vulnerable creatures to abuse. Therefore, it is self-contradictory for a person who abused such a living property to claim that he will now enjoy benefits from the abused creature. This logic is a kind of clean-hands doctrine. The author’s argument has practical benefits in the following two points. First, if an animal-abuser's exercise of ownership over the abused animal can be restricted, private person’s acquiring possession over the abused animal to rescue such animal may not constitute a tort, as long as such rescue activity does not involve crimes like assault & battery, destruction & damage, break-in, and larceny etc.. Second, if the proposition that “an animal-abuser’s exercising his(her) ownership over the abused animal may be abuse of rights” is widely disseminated and circulated, it can contribute to the formation and reinforcement of an intangible social norm that may induce people to voluntarily abide by the Animal Protection Act.