판덱텐 법학의 점유개념과 점유 보호에 관하여 - 사비니와 예링의 긴장관계를 중심으로 -

As seen in the persistent and long-standing question of whether possession is a matter of law or fact, possession has been a subject of sharp debate since Roman law, as a unique legal institution that protects a factual state of control in and of itself—without examining whether that state was established legitimately. Savigny views the essence of possession as the combination of usucapio (acquisition by use) and interdictum (special commands), suggesting that possession thereby acquires a dual nature, manifesting on one hand as a fact, and on the other hand as law. However, looking at the Roman law’s interdictum, which forms the essence of the possession system, it differs from current civil law that directly protects the factual state of control as a legal interest and regulates its infringement. In Roman law’s interdictum, if possession was obtained ‘in a flawed manner’—namely, by force (vi), in secret (clam), or by request (precario)—the one dispossessed was not granted legal protection through interdictum if they, in turn, reclaimed their possession in a similarly flawed manner from the dispossessor. This is referred to as the ‘relativity of the protective relationship of possession.’ This original, relatively relaxed doctrine of possession under interdictum practically functioned to distribute the factual possession relationship of property, which can be explained by three principles: (1) the principle of distributive allocation of possession relations, (2) the principle of parallelism between possession and real rights, and (3) the principle of minimizing possession gaps. Meanwhile, Jhering criticizes Savigny’s view that the mental element of acquiring possession, animus, is essentially ‘the will to own,’ arguing that this entrusts the legal determination of possession to the subjective element of the parties. As an alternative, Jhering considers the essence of possession to be the combination of animus as the outwardly expressed intent to control and the external constituent element (corpus), which is the spatial relationship in which that intent resides. Jhering’s spatial relationship theory, however, separates the possessed object itself from the space it occupies, interpreting the corpus of possession not as actual control over the object, but as the custodial sphere (custodia) in which the object is located. On the one hand, Savigny captured part of the essence of the possession system from the perspective of an ideological description that justifies and explains, yet he did not advance to establish the aforementioned three principles as the ideal for the general system of possession, including quasi-possession. Jhering, to some extent, succeeded in elucidating the material aspect of the concept of possession through his spatial relationship theory, but, overly immersed in a positivist perspective, he failed to understand the essence of the possession system from the standpoint of legal principles that justify and explain it. Instead, he regarded the legal interest of possession as an independent control right derived from the intent of the subject, which tended to foster, rather than resolve, conflicts between individuals.