프랑스 민법에서의 유치권제도에 관한 소고

A current lien was originated from the exception doli according to Roman Law. In the modern civil law, each country has developed this exception doli according to Roman Law or a right to refuse delivery at two directions such as the bond-like right of payment denial and the property interest-like lien. French civil code and Germany civil code adopted the former case. Allgemeines Landrecht civil code, Japanese civil code, Swiss civil code and Korean civil code adopted the latter case. In this article, we will study the provision and characteristics of a lien and the development of its theory in France of which lien system seems to be the closest to the tradition of Roman Law. Further, we will review through this study how Korean lien is different from such system. In case of France, its civil code has no uniform provision but provides a right of defense which acknowledges concretely and individually a debtor’s right of refusal performance. Theories and legal cases are divided into two cases, one case is that which the lien is regarded as the defense right of simultaneous performance, and the other is based on which the lien has close relationship with both the generation of a right to request indemnification and the retention of an object. The former is included by the defense right of simultaneous performance and the latter by the lien. Since the overtaking right and the preferential payment right are not acknowledged, the lien is not the right of priority. However, since it seems to be granted the extremely advantageous conditions, it is understood to have any authority similar to the right of priority. Accordingly, French lien is clearly different from Korean civil code in which the lien provides the independence as a property interest and the defense right of simultaneous performance as a bond. It seems that French civil code has a legal connection with the defense right of simultaneous performance.