부동산유치권의 특수성과 입법적 과제

A lien was initially developed from the right of 'exceptio doli' according to Roman Law to realize the fáirness dòctrine between two parties as a legal right granted by a way of security in the case where a person who occupies another's possession can refuse the right to return it until he/she is fully reimbursed for the bonds that they are entitled to related to the possession that they hold. Today, the lien is mostly related to real estate cases. This situation also happens to apply mostly to the two conflicted parties who are involved in real estate transactions. Such lien of real estate has a distinct feature in that it is different from other legal rights by a way of security as it acknowledges the public announcement of possession in the sense that it doesn't rely on the official registration process even though it is a real estate collateral. In addition, the lien of real estate does not acknowledge the priority reimbursement rights for collateral bonds above other miscellaneous creditors or junior creditors for the exchangeable value for the total real estate, unlike the mortgage right. Under such conditions, the targeted asset could be eliminated, damaged or expropriated by compulsory acquisition and thereby having the unique characteristic of not being acknowledged with the property substitute rights which presides over the substituted property such as money and other objects. Furthermore, in the real estate auction process, irregardless of other establishments of collateral rights before or after, the lien does not cease to exist through the auction and in the attempt to extinguish the transfer claim of the target object, should the lienholder refuse the transfer, even in the case where the defendant's lien is quoted, the claims of the plaintiff should not be totally excluded, but keeping in mind that fundamentally it is of course right that the transfer be ordered for that object due to the changes and repayment of the bonds related to that object, a distinctive characteristic exists that it is appropriate to have the case partially decided in favor of the plaintiff. Based on such distinctive characteristics of the lien of real estate, I would like to propose the following legislative issues. Firstly, the lien of real estate acknowledges opposing power just with occupation, and there is the concern that it is likely to have unpredictable damages to the purchaser or any other parties involved which makes it necessary to strengthen the establishment conditions. Also, an alternative plan is needed which will allow a public announcement to the 3rd party. Secondly, with the depreciation of the real estate exchange value due to the lien, in order to prevent any disadvantages that may be incurred to the mortgagee, even in the case of the lien of real estate, there is a need to acknowledge the effectiveness of priority reimbursement of the security right, and in addition, there is a need to terminate the lien through the real estate auction process.