민법 제197조 제1항에 대한 비판적 검토

Paragraph 1 of Article 197 of the Civil Code states that the occupier is presumed to have occupied the possession in good faith, in peace and in good faith. As a result of this provision, in the event of a legal dispute between the rightful owner and the occupier of a property, such as the statute of limitations for acquiring possession, the right of the occupier to take possession in good faith, or the acquisition of good faith, the owner shall bear the responsibility that the occupier's occupancy is an out-of-state occupation, a malicious occupation, a violent or a breach of interest. This is unfair in both normative and practical terms. In cases where the lawful owner makes a claim for return of the property against the person who possesses it, the possessor must claim and prove the legitimacy of his or her possession, but Article 197, Paragraph 1 of the Civil Act is the opposite of this. Among the occupying types, self-occupancy and bona fide occupancy can only be judged through the specific circumstances of the acquisition of possession, and the information or evidence on the circumstances of the occupier's acquisition of possession belongs to the domain of the occupier, and it is difficult or impossible for the owner to access it. Nonetheless, Article 197, paragraph 1 of the Civil Code is absurd in placing the owner in a disadvantageous position of bearing the burden of proof. This is most evident in the case of the statute of limitations. The statute of limitations for acquiring possession allows the occupier to acquire ownership in the case of long-term occupancy and use of another person's real estate, and although the occupancy in this case may occur without the owner's knowledge and not through a transaction, the owner must prove that the occupier's occupation is an out-of-state possession in accordance with Article 197(1) of the Civil Code. It also applies to cases such as the right of the occupier in good faith (Article 201, paragraph 1 of the Civil Code) and the acquisition of good faith (Article 249 of the Civil Code), but it is not as seriously a problem as in the case of the statute of limitations. This seems to be because in the former case, the judicial precedents understand the meaning of good faith as the concept of positive misrepresentation that "there is a right to receive fault", and that "there must be a justifiable basis for making a mistake", and furthermore, it is interpreted so that the presumption under Article 197(1) of the Civil Code does not play a decisive role by presumption of good faith only when it is recognized that there is a justifiable basis for misrepresentation, and in the latter case, which is one of the requirements for acquiring good faith, is not presumed in Article 197(1) of the Civil Code. Paragraph 1 of Article 197 of the Civil Code should be abolished because it lacks rationality and justification in itself and raises difficult problems in terms of interpretation, especially with regard to the statute of limitations for acquiring possession of real property (Article 245, paragraph 1 of the Civil Code).