유치권에 관한 민법 및 관련법의 개정방안

The Korean Civil Code pertaining to the right of retention is widely influenced by the Civil Code of Japan and its lien system. The Japanese Civil Code legalizes numerous French legal theories and precedents regarding liens and implements a claimable lien system, which was influenced by the German Civil Code. The legal system in Korea mandates the right of retention or a lien as a statutory security right in rem and in order to execute or notify such right, one must be in possession of the subject property. However, one cannot exercise a right to preferential payment for liens and the principle of takeover is applied in the auction procedure, unlike other real rights granted by way of security. As a result, this lien system has been noted as the primary cause to various false liens and other massive disservice such as potential acquirer abandoning his bid, delay in auction procedure and transfer of deed of real estate, and financial damages due to a decrease in selling price. Thus, in order to overcome such institutional deficiencies, several legal interpretations that limit the establishment and effects of liens have been addressed. However, these attempts can only go so far under the existing legal system and therefore legislative reform is suggested as a fundamental resolution to the issue. In response, the Civil Code Revision Committee under the Ministry of Justice has established the Draft Amendments to the Civil Code and other related law that could essentially ameliorate the problems of abuse or misuse of liens. In summary, the revised Civil Code allows real estate liens for only unregistered real estate and governs a right of a mortgage creation as complimentary measures. However, opinions are sharply divided between people who advocate the Draft Amendments, which principally abolish a real estate lien system, and people who object such legal reform. In light of such controversy, this research illustrates problems of liens in terms of both substantive and procedural laws, considering that various opinions warrant the discussion of legislative reform. Finally, this research proposes a legislative alternative after detailed analysis of the provisions regarding liens in the Draft Amendments.