선행저당권이 설정되어 있는 경우 상사유치권의 행사를 제한하는 판례이론의 문제점과 해결방안

The position of the case restricts the effect (Effect on setting up against Restriction) of Mercantile Liens when there is a preceding mortgage. This is theoretically inconvenient and can not be implemented in the auction and delivery process unless the practice is changed. This problem is fundamentally lost when a person having a right of retention is unable to counter the buyer of the auction procedure, a person having a right of retention is not occupied by the buyer's request for extradition. And in consequence, the lien is destroyed. In other words, if a person having Mercantile Liens can not compete with the buyer in the auction procedure (ie, restricts the lien against the buyer), a person having a right of retention loses his occupation ① by the buyer's request for extortion and the right of retention eventually ends. If the dividend exceeds the amount of the ② counterclaimed securities of the mortgage that precedes the foundation, the mortgagor who follows is protected. This was intended only to limit the power of the lien. However, it loses the lien itself (above ). It was intended only for the ① protection of the preceding mortgagee. However, the result is that mortgage lenders who follow are also protected (see above). ② Theoretically, there is no problem if we take the position of restricting the existence (argument) of Mercantile Liens without restricting its effect (opposition). And the purpose of case theory can be implemented without changing the practice.