로마법상 공동점유에 관한 시론

This article examines whether co-possession, which was denied in classical Roman law, might have been accepted in pre-classical legal tradition, based on the observation that possession concepts differed between classical and pre-classical law. The classical law concept of possession as factual control led to the denial of co-possession. There was controversy in classical period regarding a special form of co-possession where legitimate and illegitimate possession coexisted. While the pure classical legal tradition, which strictly adhered to factual control as the concept of possession, denied this possibility, the majority view accepted it. Given that Sabinus affirmed this in cases of precarious possession, this special form of co-possession might have originated from the pre-classical tradition. Under the pre-classical law concept of possession as use and custody, co-possession would likely have been possible. Classical law, which defined possession as factual control, held that citizens' collective use of public land or facilities as an association could not be considered possession but merely use. According to the view that regards possession as use, it would not be impossible for more than 2 persons to jointly use privately owned property in the same way as public land or facilities. Legal sources indicate the possibility of rei vindicatio based on co-owned shares, hereditatis petitio, interdicts based on co-owned shares, and usucapio based on co-owned shares. While these are not direct evidence of co-possession, they might suggest its existence.