부동산 경매에 있어서 유치권의 우선변제권 인정 및 대항력 제한

1. CONTENTS (1) RESEARCH OBJECTIVES The purpose of this study is to pioneer new interpretational approach to the study on the recognition of priority performance and opposing power restriction of lien. It is expected that the result of this study could contribute greatly to solve the uncertainty and disorder stemmed from lien in real estate auction markets. (2) RESEARCH METHOD This study was focused on theory analysis and alternative re-interpretation of provisions under the pre-existing laws. We went back to the ancient legal principles in Roman laws including exceptio doli and retentio in order to inquire into the origin and development of lien. We analyzed lots of precedent studies and materials which are related to our topic. This study examined the substantial and procedural laws in force in order to grasp the contents of lien and real estate auction under the current regulations. This study centered on the new interpretation of related laws via systematic linking of the substantial law(Civil Law) and the procedural law(Civil Execution Law) as opposed to the prevailing opinions. (3) RESEARCH FINDINGS Lien influences on the performance of real estate auctions. It turns down the rate of sold quantities and sold prices. The most important causes of this negative effect are uncertainty of auction procedure and priority disorder resulted from non- systematic interpretation about lien based on the dogmatic logics. 2. RESULTS This study presents an interpretational method from the standpoint of new approach to solve the nuisance of lien in real estate auctions. It is strongly suggested that the prevailing opinions on priority performance and opposing power are to be modified as follows: 1)It should be recognized that lien also holds the qualification for priority performance, same as other typical security rights including mortgage and pledge. 2)The opposing power of lien should be subject to restriction according to the opposing power among the rights.