민법상 유치권의 “채권과 물건의 관련성”에 관한 연구

A lien is a statutory collateral security that naturally occurs unless otherwise marked in a special agreement between the contracting parties, provided that a certain relevance (closely related) between the obligation and the object subjected the collateral are acknowledged. Since the lien is a security, it takes a predominant effect, requiring no registration. As a result, a third party cannot ascertain when the lien has been established. Also, the lien is acquired by the buyer without being nullified in the sale of the object, even in the auction procedure. For this reason, the lien has a great impact on third parties, causing loads of problems. The Civil Code, Article 320 of the Civil Code, defines the relevance (closely related) solely as ‘an obligation related to an object’ and relies on its interpretation entirely in the doctrine and case law at present. The majority views-duality theory-and precedent cases have acknowledged the criteria for the relevance between the obligation and the object subjected to the obligation as both「the obligation originated from the object itself」and the obligation originated from legal or fact relevance, the same as the right to request a return of the object . A comparative legal analysis shows that Japanese Civil Code has accepted Germany's different-scheme lien security uncritically, despite being in the influence of the French Civil Code; and Korean duality theory and precedent cases also accepted the Japanese lien system directly. For this reason, the scope of the establishment of the lien is widened, which often leads to the detriment of the third party, causing the principle of rank for the security undermined indirectly. To solve these problems, the criteria to acknowledge the relevance (closely related) between the obligation and the objects subjected to the obligation should be in principle limited to the obligation originated from the object itself . However, if the creditor is granted a lien on the principle of fairness with no problem occurred in relation to the third party, or if the creditor is not protected unless the lien is acknowledged, the exceptions for the relevance between the obligation and the object to the obligation shall be granted, following the below: ①in the case of a new construction contract in which a contractor owns the ownership, in the case where the contractor, without having received the contract payment, is requested to return the building from the person who has received the ownership from the contractor, and is not able to set up against the third pay solely with the concurrent defense rights; ②in the case of the expenditure of expenses or the provision of labor is reflected in the value of objects to be maintained or increased, and eventually returns to the owner's interests, or in the case where the same expenditure or labor has been provided to the objects before or after the mortgage has been established to the objects. In addition, in order to solve the uncertainty of the timing of the establishment of the lien, both the relevance between the obligation and the object subjected to the obligation and the relevance between the obligation and the occupation of the object shall be affirmed as the constitution requirement of the lien.