민법 제197조 제2항의 “소가 제기된 때”의 의미에 관하여

• 발행기관: 한국민사소송법학회
• 저자명: 김기정
• 간행물 정보: 『민사소송』제26권 제1호, 45~82쪽, 전체 38쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2022.02.28

영문 초록

Article 197, Paragraph 1 of the Civil Code provides that it is presumed that a possessor of a thing possesses it with the intention to own, in good faith, in peace and in public. Paragraph 2 of the said Article provides that if a possessor in good faith is defeated in an action on the title, he/she shall be deemed to be a possessor in bad faith as from the time when such action was brought. The question here is whether “when such action was brought” thereunder means the date on which the action was filed or the date on which a duplicate of the complaint was served. Scholars without exception uphold the latter. However, it is questionable to interpret that the said provision of “when the action was brought” means the date on which a duplicate of the complaint was served, that is, the date on which the action became pending before the court, which runs against the language. In my view, it is on week ground to interpret the said provision means the date on which the action became pending before the court. Rather, based upon the principle of grammatical interpretation, it should be interpreted to mean the time when the complaint was filed with the court.

목차

Ⅰ. 서론

Ⅱ. 민법의 해석에 관하여

Ⅲ. 선의 점유자의 과실수취권

Ⅳ. 민법 제197조 제2항의 연혁과 입법례 및 규정 이유

Ⅴ. 소송계속(訴訟繫屬)에 대하여

Ⅵ. 판례

Ⅶ. 일본에서의 논의

Ⅷ. 결론

키워드

선의 점유자 과실수취권 소송계속 문언해석의 원칙 the possessor in good faith right to fruit pending before the court the principle of grammatical interpretation