유치권의 재해석을 통한 부동산 경매의 불확실성 해소 방안에 관한 연구

1. CONTENTS (1) RESEARCH OBJECTIVES The purpose of this study is to explore an interpretational method for solving the uncertainty and its evil influences on real estate auctions. This study takes aim at supporting our prior study that recognizes priority performance and opposing power restriction of lien how it will go far toward solving the problems resulted from lien in real estate auctions. (2) RESEARCH METHOD This study was carried out through theory analysis and alternative re-interpretation of related laws on lien in real estate auctions. This is the follow-up study of our prior paper, therefore it is fundamentally based on the premises that lien also has the legal effects of priority performance and opposing power restriction in real estate auctions. For this reason, this study discusses the effect of lien from a different point of view as compared with the traditional majority opinions. We exhibited the theoretical logics why the existence of lien makes the procedures uncertain in real estate auctions. We analyzed lots of pre-existing studies and scrutinized the trend of judicial precedents of the Supreme Court in relation to the topic. This study has a totally unique approach in that it deals with both the practical and procedural laws systematically. In addition, this study features in discussing because it provides with realistic solutions within the current legal systems without any further actions. (3) RESEARCH FINDINGS Lien gives rise to uncertainty of real estate auction procedure through its biased value information. The existence of lien exerts a great influences on the performance of real estate auctions : (1) It increases the number of mismatching properties; (2) It turns down the rate of successful quantities and sold prices. Lien makes the successful bidders be liable for unexpected damages on account of unconditional debt undertakings. 2. RESULTS This study provides with an interpretational method from the viewpoint of new approach in order to solve the nuisance of lien in real estate auctions. It is strongly suggested that the prevailing opinions of denying allotment qualification for lien and imposing an unlimited debt undertaking on the successful bidders should be modified as follows: 1) It should be recognized that lien holds the qualification for allotment like other typical security rights including mortgage and pledge; 2) The bidders' unlimited debt undertakings for lien need to be taken switchover to conditional responsibility in accordance with the principle of opposing power. This study may contribute to settle the nuisance of lien and to revitalize the real estate auction markets.