Earticle

초록

영어

Concerning the matter which is related with a possessive inheritance, it is based on the point of view whether we take a possession as a fact or a right. This old debate relating with an inheritance is linked with the matter-whether we emphasize a possession or an inheritance, futhermore, whether an inheritance is regarded as a personality succession or a right
succession. According to our Civil Law, the possession includes both a fact and a right, and the inheritance includes both a personality succession and a right succession at the same time.
In the mean time, an inheritance of possession right for the inheritor who acquires an actual possession is decided on if the inherent possession is admitted or not, according to whichever is taken importantly, a possession or an inheritance. An inheritance of possession right is existed in the contact point between the possession system which protects the actual control on an object and the inheritance system which succeeds the right and duty inclusively, and the construction of law is necessary to accord the both. The prevailing theory which admits the inherent possession of an inheritor is more persuasive in terms of an accordance of the possession and the inheritance, since it discriminates between the actual possession and the
previous conceptional possession, and compromises the both as well. And this problem is based on the matter-whether we consider the inheritance as an inclusive succession of individual right and duty, or as a succession of an inheritor's position and personality.
Buy the way, the precedent opinion is appropriate in case of only the conceptional possession right transference by the inheritance according to the Civil Law Article 193 because the inheritance itself does not change the nature of possession, but in case the inheritor acquires an actual control over the inheritance, it is considered as an acquisition of his own possession. The
precedent opinion which reveals that it cannot be a new right even though the inheritor begins an actual possession, tends to a personality succession view which is a traditional concept, beyond the view-the essence of an inheritance is a succession of a individual right and duty.
However, this should be reconsidered since it is not corresponding with a contemporary individual inheritance law, the possession is a system which gives a certain legal effect to an actual activity which controls the real life, and if an inheritor's possession could not be a new right, an acquisitive prescription itself is not easy in case of an inheritance, no matter how much
time goes by, and to make a balance with other cases which grant the acquisitive prescription. In the end, an inheritor can acquire an actual control not through the conceptional possession embodiment but through an actual possession of an inheritor himself, and can take it as an inheritance title.

목차

Ⅰ. 서론
 Ⅱ. 점유권상속의 연혁과 요건
  1. 점유권상속의 연혁
  2. 점유권상속의 요건
 Ⅲ. 상속점유권의 법적 성질
  1. 점유권상속의 의의와 입법취지
  2. 점유권상속의 학설과 판례
  3. 소결
 Ⅳ. 점유권과 상속의 교착
  1. 서
  2. 점유권상속과 취득시효
  3. 점유침탈의 경우 점유보호청구권과 상속회복청구권과의 관계
  4. 점유권상속과 공동상속
  5. 점유권상속과 불법행위책임
 Ⅴ. 결론
 참고문헌
 ABSTRACT

키워드

저자

• 김기영 [ Kim, Gi-Young | 수원대학교 법정대학 법학과 부교수, 법학박사 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  원광법학 [Journal of Law research]

• 간기

  계간

• pISSN

  1598-429X

• eISSN

  2508-4526

• 수록기간

  1962~2026

• 등재여부

  KCI 등재

• 십진분류

  KDC 360 DDC 340