Ownership
Overview
Ownership (소유권, ownership) is the right to exclusively control an object, and is the most complete real right (物權) under civil law. The owner has the right to use, profit from, and dispose of the object within the scope of the law (Article 211 of the Civil Act), which forms the core of property rights. Ownership has been the foundation of Western legal systems since Roman law, and in modern civil law, it is recognized as the most basic and comprehensive real right. Ownership is protected as an absolute right, but it may be restricted when it conflicts with public welfare or the rights of others.
Main Content
Concept and Nature of Ownership
Ownership is a complete right of control over an object, encompassing three powers: use (使用), profit (收益), and disposal (處分). The right to use is the right to utilize the object according to one's own intentions; the right to profit is the right to acquire benefits arising from the object (e.g., rent, fruits); and the right to dispose is the right to transfer, discard, or alter the object. Ownership has exclusivity, so two or more ownership rights cannot exist over the same object (principle of one object, one right). Additionally, ownership is perpetual and does not extinguish by prescription (however, another person may acquire ownership through acquisitive prescription).
Acquisition of Ownership
Ownership is divided into original acquisition and derivative acquisition. Original acquisition is the acquisition of ownership anew without relying on another's rights, including occupation (of ownerless property), finding (of lost property), accession (attachment, mixture, processing), and acquisitive prescription (through possession). Derivative acquisition is the transfer of ownership from a previous owner, typically through sale, gift, inheritance, or exchange. For real estate, registration is required; for movable property, delivery is required as the effect requirement (Articles 186 and 188 of the Civil Act).
Content and Limitations of Ownership
Ownership is an absolute right but not unlimited. The Civil Act stipulates that the exercise of ownership must not violate social order or infringe on the rights of others (Article 2 of the Civil Act). Additionally, various restrictions are imposed for public welfare. For example, land ownership is limited to a certain extent underground and in the air (Article 212 of the Civil Act), and in relations with neighboring land, prohibitions on nuisance, rights to repair and passage, etc., are regulated. Under public law, land use may be restricted by the Urban Planning Act, Building Act, Farmland Act, etc., and expropriation or use restrictions are possible. Ownership may recede in conflicts with environmental rights, housing rights, etc.
Protection of Ownership
Ownership is protected through real rights claims. The owner may demand the return of the owned object from a possessor (claim for return of ownership), demand the removal of interference from a person interfering with ownership (claim for removal of interference with ownership), and demand prevention from a person likely to interfere (claim for prevention of interference with ownership). Claims for damages due to tort are also possible. Ownership is guaranteed as a property right under the Constitution (Article 23 of the Constitution) and cannot be expropriated or restricted without just compensation.
Co-ownership and Joint Ownership
Ownership may belong to a single person or be held jointly by multiple persons. Co-ownership (共有) is a form where each co-owner has a share, and disposal of the share is free. Joint ownership (合有) is a form where an association (e.g., a partnership) owns the object, and disposal of shares is restricted. Collective ownership (總有) is a form where an unincorporated association (e.g., a club) owns the object, and individual members do not have shares. Each form differs in management and disposal methods.
Recent Trends
As of 2024-2025, the concept of ownership is undergoing significant changes in the areas of digital assets and intellectual property rights. The recognition of ownership of virtual assets (cryptocurrency, NFTs) is a major issue, with courts and regulators recognizing virtual assets as having property value but discussing consistency with the traditional concept of ownership. In particular, for NFTs, precedents have emerged that they are merely access rights, not ownership of digital content, clarifying the scope of legal protection. Additionally, the spread of the sharing economy has accelerated the separation of use rights and ownership, leading to a social trend where 'access' is valued more than 'ownership.' Accordingly, some countries are discussing the introduction of new types of real rights for digital assets. Due to strengthened environmental regulations, the exercise of land ownership is becoming more restricted, and new forms of rights, such as carbon emission rights for responding to the climate crisis, are emerging. Furthermore, the issue of ownership of works created by artificial intelligence (AI) is emerging as a legal challenge.
Related Topics
- [[Real Rights]]
- [[Civil Act]]
- [[Property Rights]]
- [[Right of Possession]]
- [[Acquisitive Prescription]]
- [[Co-ownership]]
- [[Virtual Assets]]
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