부동산경매에서 하수급인의 유치권에 관한 연구

Since there is a controversy whether a subcontractor's lien is correlation to a targeted property or not, this study explores that such correlation can be appreciated. The second chapter examines that subcontractor' construction payment credit has correlation to a targeted property. Then, the third chapter researches court's interpretation and precedents related to the possibility of emergence of subcontractor's preserved credits and the operating range of lien. It continues to explore alternatives of correlation between subcontractor's secured credits and properties by types. In conclusion, the fourth chapter suggests an interpretation of correlation between subcontractor's construction payment credit and properties based upon equity. In terms of the correlation of credits and objects, article 320 of the Civil law says that 'lien can be appreciated when credits are produced linked to properties and securities' but it does not clearly define the nature of credits which are produced linked to properties. Therefore, it is necessary to abide by court's interpretation of this subject. Court's precedents demonstrate that as long as credits produced related to the properties is not against the principle of equity which is the essential aim of lien system, credits produced not only from the property itself but also from same law and fact relation as the claim of return for the property can be appreciated. This shows the acceptance of dualism which is supported by the majority. It causes excessive extension of lien condition in some cases. Such extensive interpretation can harm the third party and the principle of priority order upon the effect of property rights. Since the subcontractor's credit is payment credits which are produced from making a subcontract with contractors, it is not likely to regard it as 'credit produced related to the property'. Except some unusual cases, undertakes does not have an obligation to directly pay construction payment to subcontractor. In this sense, it is valid to deny the correlation between the property and the payment credits which are owned by subcontractor responsible for partial construction This study suggests flexible interpretations of the appreciation of correlation between subcontractor's secured credits and the property. It shows that such interpretation should be applied case by case. For example, the case in which although an undertaker pays partial or procedural construction payments to contractor, contractor does not pay subcontractor and the case in which a contractor and a subcontract are not paid should be differently handled. If the essential aim of lien system is based upon the principle of equity, it needs to narrow down the range of emergence of lien by differentiating cases and strictly interpreting the correlation between subcontractor's secured credits and the property.