영국에서 등기제도가 점유취득시효에 미친 영향 (Study on Effect to Adverse Possession by Registration System in England and Wales)

서지정보

· 발행기관 : 성균관대학교 법학연구원
· 수록지 정보 : 성균관법학 / 22권 / 1호 / 93 ~ 118페이지
· 저자명 : 홍봉주

초록

Once property is recognised as a relationship of socially approved control, it becomes infinitely more accurate to say that one has property in a thing than to declare that something is one's property. To claim 'property' in a resource is, in effect, to assert a strategically important degree of control over that resource. The power relationship implicit in property is not an absolute but a relative phenomenon. In relation to land, the common law knows no absolute title; all title remains relative and, even in its statutory form, essentially defeasible. This aspect of the common law is sometimes called relativity of title. The courts looked at all rights to land as relative and would declare the person with the best title to be entitled to the land.
Despite the long-standing common law protection of possession, there are convincing arguments against adverse possession in modern times. The vast majority of titles to land are now registered and it is the fact of registration that confers legal title upon the landowner. This makes any argument that is based on relativity of title less convincing, because the register guarantees title. In addition, the argument that the squatter may not know from whom to seek permission to allow them to occupy the land rings less true: the squatter might easily look up the proprietor in the register─particularly easily if they can access the register online─and negotiate to buy, or lease, the apparently unwanted land. Only if the registered proprietor has disappeared without trace is there much justification for simply moving in, tempting though it might be to do so.
The Land Registration Act 2002 has considerably reduced the significance of the doctrine of adverse possession in the system of registered titles; and as that system is rapidly replacing the unregistered system, the importance of adverse possession will diminish rapidly.

영어초록

Once property is recognised as a relationship of socially approved control, it becomes infinitely more accurate to say that one has property in a thing than to declare that something is one's property. To claim 'property' in a resource is, in effect, to assert a strategically important degree of control over that resource. The power relationship implicit in property is not an absolute but a relative phenomenon. In relation to land, the common law knows no absolute title; all title remains relative and, even in its statutory form, essentially defeasible. This aspect of the common law is sometimes called relativity of title. The courts looked at all rights to land as relative and would declare the person with the best title to be entitled to the land.
Despite the long-standing common law protection of possession, there are convincing arguments against adverse possession in modern times. The vast majority of titles to land are now registered and it is the fact of registration that confers legal title upon the landowner. This makes any argument that is based on relativity of title less convincing, because the register guarantees title. In addition, the argument that the squatter may not know from whom to seek permission to allow them to occupy the land rings less true: the squatter might easily look up the proprietor in the register─particularly easily if they can access the register online─and negotiate to buy, or lease, the apparently unwanted land. Only if the registered proprietor has disappeared without trace is there much justification for simply moving in, tempting though it might be to do so.
The Land Registration Act 2002 has considerably reduced the significance of the doctrine of adverse possession in the system of registered titles; and as that system is rapidly replacing the unregistered system, the importance of adverse possession will diminish rapidly.

참고자료

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