부동산 유치권의 대항력제한에서 불법점유를 원인으로 하는 유치권 성립제한으로의 재전환

According to the Para. 5 of Art. 91 of the Civil Execution Act, a successful bidder shall be responsible for reimbursing to the lien holder the claims that are secured by the lien. But this right of retention has many peculiar characteristics which are dissimilar to other real security rights. Just the above characteristics of this right of retention raises many difficulties in interpretation and application of this right. Thus, in case where the right of retention originates after a seizure on immovables, participants to auction is going to declare bid price as possible as low, when the person who has this right has reported this right to the court in the auction procedures. If so, prior-order creditors suffer damage, because the amount to be distributed to them becomes less. On the other hand, even though the person who has this right has not reported this right to the court in the auction procedures, a successful bidder who is not aware of that right is forced to reimburse the claims that are secured by that right, so ultimately he suffers damage. However, it may well be questionable whether it is of value to protect the claims that are secured by the right of retention so far as not to protect all creditors even including execution creditors and persons who hold the right of a prior-order security. In both Korea and Japan, a influential theory asserts that the person who gets to hold the right of retention shall not be eligible to oppose the successful bidder in the auction procedures. By Korean Supreme Court Decision 2005Da22688 Delivered on August 19, 2005, the person who gets to hold the right of retention subsequent to a seizure on immovables shall not be eligible to oppose the successful bidder in the auction procedures. But Korean Supreme Court Decision 2008Da70763 Delivered on January 15, 2009 decided that the person having this right shall be eligible to oppose the successful bidder in the auction procedures, in case where this right accrues after the right to collateral security has been established and the auction procedures for exercise of the right to collateral security is progressed. And Korean Supreme Court Decision 2009Da19246 Delivered on November 24, 2011 decided that the person who gets to hold the right of retention subsequent to a provisional seizure on immovables shall be eligible to oppose the successful bidder in the auction procedures. Korean precedent restrict counterforce of right of retention by trust and good faith or the effect of prohibition of disposition. However, if the person who gets to hold the right of retention violates trust and good faith or the effect of prohibition of disposition, we see that his(her) possession has originated in an unlawful act(Para. 2 of Art. 320 of the Civil Act). Possession has originated in an unlawful act shall not meet the establishment of right of retention. When we decide whether possession has originated in an unlawful act or not, we shall consider all things that obtains purpose of seizure(provisional seizure), principle of takeover, principle of extinction(extinguishment), and principle of increase of value. To put it in a nutshell, we would rather restrict by establishment of right of retention than restrict counterforce of right of retention.