부동산 경매에 있어서 유치권의 효력 범위에 관한 연구

1. CONTENTS (1) RESEARCH OBJECTIVES Even though a lien under civil law has only an effect of retention, the civil execution act takes on abernahmeprinzip with respect to a lien and thus practically, in the procedure of payment, a lien takes priority over a mortgage which was established before such lien. In other words, even though a lien was established against any object to be executed in the civil execution procedure, a mortgagee or other common creditor has no any restriction on execution of real property, but cannot take over real property obtained by a successful bid without payment of secured debt to a lien holder because a lien is not expired by auction. Therefore, since it is equivalent to the effect of recognition of a lien holder as having top priority right of payment, a mortgagee who has pre-established security, or a creditor who has made a provisional attachment or attachment may encounter unexpected loss. In order to prevent such loss or damage, it is necessary to limit counterforce of a lien. (2) RESEARCH METHOD This study conducts a research in a method of legal interpretation theory through literature investigation and case analysis. (3) RESEARCH FINDINGS The reason that the civil execution law has adopted ‘abernahmeprinzip’ might be because it kept in mind in the concept of a lien as receivable increasing value of property. Therefore, it is necessary to take a different position on ‘receivable embodying exchange value of property itself’. In other words, since receivable for construction payment might contribute to the increase of the value of retained property, such receivable need to have a priority over pre-established mortgage. However, since a lien for any receivable embodying exchange value, such as a right to claim a return of payment, has a similar nature to a mortgage, both are in the position of competition or contrast. 2. RESULTS Given the fact that a lien is acknowledged for fairness, it is also necessary to determine whether counterforce of a lien can be acknowledged or not, in the aspect of fairness. In addition, through typical consideration, it is necessary to take a different position between ‘receivable increasing the value of property’, such as receivable for construction payment, and ‘receivable embodying exchange value of property itself’, such as a right to claim a return of transaction payment. There is a case where it is permissible to claim a lien to a debtor but it is not permissible to claim a lien to persons other than a debtor. In such case, it is desirable to hand this issue by limiting the scope of parties who can claim a lien, rather than negating the establishment of a lien. This issue has been addressed in terms of ‘correlation’ as one of requirements of establishment of a lien, but it should be addressed in terms of the effective scope of a lien.