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國有財産의 取得時效에 관한 硏究 원문보기
(A) Study on the Acquisitive Prescription of the National Property

  • 저자

    정현관

  • 학위수여기관

    昌原大學校 行政大學院

  • 학위구분

    국내석사

  • 학과

    사법행정학과 법정책전공

  • 지도교수

  • 발행년도

    2003

  • 총페이지

    iv, 110p.

  • 키워드

    국유재산 취득시효 부동산취득시효 국유재산법;

  • 언어

    kor

  • 원문 URL

    http://www.riss.kr/link?id=T9168207&outLink=K  

  • 초록

    The objective of the present study was to examine whether the acquisitive prescription by Article 245 of the Korean Civil Law is acknowledged for the national property. Despite of provisions in Article 245 of the Korean Civil Law, the acquisitive prescription of national property was excluded from the objects of acquisitive prescription under the Korean Civil Law by Clause 2 of Article 5 of the National Property Law, a special law enacted from the 1^(st) of May 1977. However, since the Constitutional Court of Korea made the Decision 89-Heonga-97 on the 31st of May 1991 that it is unconstitutional to apply the above provisions of the National Property Law to the national property with no specific purpose for the reason that it goes against the principle of equality, acquisitive prescription became applicable to national property with no specific purpose, and as a result, there have been numerous litigations caused by the acquisitive prescription of national property and a large amount of national property has been being encroached by private individuals. There is no problem because national property, particularly administrative property and preserved property fall under so-called public property, so acquisitive prescription under the Korean Civil Law is not applicable to the property according to provisions on national property, but the national property with no specific purpose came to be the object of prescription since the Constitutional Court of Korea decided that Clause 2 of Article 5 of the National Property Law is unconstitutional. Accordingly the present study analyzed whether such national property should be the object of acquisitive prescription under the private law focused on the precedents and theories, examined the problems in the real estate acquisitive prescription system of national property and the solutions for the problems based on the analysis of precedents, and considered whether it is valid to apply the acquisitive prescription system of the Korean Civil Law to the national property. In conclusion, because of the nature that the real estates owned by the state are basically the national property that must be protected for the welfare of the whole people of the country regardless of whether they are the administrative property, the preserved property or the property with no specific purpose, the restrictive measures for 'public welfare' provided in Clause 2 of Article 37 of the Constitution are understood to purpose to restrict the status or the right of those who can get the acquisition prescription of national property. The researcher reached the conclusion that the national property must be excluded from the application of the provision of estimating unauthorized occupation in Clause 1 of Article 197 of the Korean Civil Law to Article 245 of the Korean Civil Law from the premises of public and private laws, and that if it is practically infeasible to revise the relevant laws acquisition prescription must be strictly restricted in order to prevent the unjust practice of private individuals' encroachment upon the national property.


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