유치권에 기한 경매의 법적 성질

As the Lien is the real rights of security, the lien holder can auction off the object for the liberation from the burden of the retention and the debt recovery. And the lien holder may receive dividends equally from the proceeds from the sale of the object. Also the Korean Civil Code 322 stipulates that a lien party has the right of auction. In the effect of the lien as a “de facto” effect of the preferential performance, the right of handy repayment, the right of receiving the accrued assets, and the right of separation has a substantial legal entity basis. In contrast, the right of refusing the delivery has no explicit substantial legal basis, and it is only based on the interpretation of the “retention” and Korean Civil Execution Code 91 v. Therefore we must do the limited interpretation of the right of refusing the delivery and Korean Civil Execution Code 91 v. If the auction by the lien holder’s application is made, the auction is not pure substantial auction, and not formal auction for the sale and not formal auction for the liquidation. In other words, as the auction by the lien holder’s application has the two purpose of the liberation from the burden of the retention and the debt recovery, I think special type of auction (third type).