점유취득시효의 요건에는 점유자가 소유의 의사, 즉 자주점유로 점유할 것이 필요하다. 민법상 자주점유는 추정되기 때문에, 취득시효소송에서는 타주점유에 대한 입증책임은 취득시효의 상대방, 즉 소유명의자가 부담한다. 타주점유의 입증책임은 매우 어렵기 때문에, 이를 완화시키고자 객관적사정론이 등장하였다. 대법원은 객관적 사정의 하나로서 점용권과 상당성을 제시하고 있는데, 점용권보다는 상당성이 더 설득력을 가진다고 할 수 있다. 대법원의 판례를 살펴 본 바, 1. 타주점유에 있어서의 상당성의 산술적 비율은 20% 이내로 본다. 2. 산술적으로 20%를 넘는다고 하더라도 위치와 형상, 주변상황 등을 고려하여 상당성이 있다고 보아 자주점유로 볼 수 있는 경우가 있다. 3. 시효취득의 대상이 되는 토지의 면적이 넓은 경우에는 그 산술적 비율이 10% 이내로 볼 수 있다는 사실을 확인하였다.

An acquisitive prescription of Korean Civil Law Article 245 prescribes a person who has for twenty years peaceably and openly held possession of an immovable with an intention to own it, shall acquire the ownership by making registration thereof. An intention to own it, that is, autonomy possession is the primary requisite to success in positive prescription. State of Possession in Korean Civil Law Article 197 stipulates a possessor is presumed to be in possession openly, peaceably, in good faith, and with the intention of holding as owner. Therefore the intention of holding as owner is presumed. The proof of the heteronomy possession in positive prescription burdened a person's hands, that is, a named owner. Because the burden of proof of heteronomy possession is very difficult, the theory of objective consideration appeared to relieve the charge of proof. Korean Supreme Court suggested considerable nature and right of occupation and use as one of the objective consideration. In my opinion, it is reasonable that considerable nature is better than right of occupation and use. Korean Supreme Court prescribed, the first, arithmetic proportion of considerable nature on the heteronomy possession seemed within 20%. The second, even if it is over 20% arithmetically, it is regarded considerably in ratio as autonomy possession, considered the location and configuration, surroundings of the land. Finally if the scale of the land is wide, arithmetic proportion of considerable nature on the heteronomy possession is within 10%.

An acquisitive prescription of Korean Civil Law Article 245 prescribes a person who has for twenty years peaceably and openly held possession of an immovable with an intention to own it, shall acquire the ownership by making registration thereof. An intention to own it, that is, autonomy possession is the primary requisite to success in positive prescription. State of Possession in Korean Civil Law Article 197 stipulates a possessor is presumed to be in possession openly, peaceably, in good faith, and with the intention of holding as owner. Therefore the intention of holding as owner is presumed. The proof of the heteronomy possession in positive prescription burdened a person's hands, that is, a named owner. Because the burden of proof of heteronomy possession is very difficult, the theory of objective consideration appeared to relieve the charge of proof. Korean Supreme Court suggested considerable nature and right of occupation and use as one of the objective consideration. In my opinion, it is reasonable that considerable nature is better than right of occupation and use. Korean Supreme Court prescribed, the first, arithmetic proportion of considerable nature on the heteronomy possession seemed within 20%. The second, even if it is over 20% arithmetically, it is regarded considerably in ratio as autonomy possession, considered the location and configuration, surroundings of the land. Finally if the scale of the land is wide, arithmetic proportion of considerable nature on the heteronomy possession is within 10%.

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heteronomy possession, autonomy possession, title of possession, right of occupation and use, considerable nature, arithmetic proportion, burden of proof