점유시효취득을 원인으로 한 소유권이전등기청구권의 법적 성격 - 남효순 교수의‘ 새로운 패러다임에 의한 물권론’에 기초하여 -

Under the current general understanding of acquisitive prescription of real property under Article 245 of the Civil Code, the effectiveness of rights acquisition may vary depending on the timing of registration and surrounding circumstances. This approach risks undermining the stability of the system. The fact that entitlement to rights can change based on the timing of a registration application weakens the fundamental purpose of acquisitive prescription. This issue is not confined to the nature of the claim for registration but extends to the need to reassess the existing legal framework distinguishing real claims from obligatory claims. The ongoing debate over whether claims for registration must be limited to obligatory rights highlights this need. Concepts such as expectant real rights or de facto ownership have been used to address theoretical gaps, but reinterpreting these claims as real claims offers a potential solution. From this perspective, a possessor who fulfills the requirements for acquisitive prescription acquires a claim for ownership transfer registration, which should be regarded as a real claim. This claim is directed at the current registered owner, and even if the registered ownership changes, the new owner inherits the proprietary obligation. Adopting the theory of real claims may raise concerns about losing practical benefits when registration is delayed. However, it better aligns with the system's purpose, as it allows the possessor to assert their rights against subsequent registered owners even if ownership registration changes.