건설공사 수급인의 유치권 포기 특약의 효력- 대법원 2018.1.24. 선고 2016다234043 판결을 중심으로 -

In the sense that a right of retention is a legal real right granted by way of security,special lien-exclusion agrement that prevents a right of retention from ocuring evenif other statutory requirements are met is frequently made in the busines world. Thejudgment states that “a right of retention is a legal real right granted by way of securityto protect the interests of creditors. The parties can make a special agrement to preventa right of retention from ocuring in advance, and such a special agrement is valid.”A right of retention is not established by a contract betwen the owner of the objectand the creditor, but is established by having certain objective requirements prescribedby law. A right of retention of the contractor for construction works is a system preparedby taking a certain burden on real estate security transactions based on the specialprotection value of claim of the price for construction. If the establishment of such rightof retention is excluded acording to the intention of the parties, it wil result in virtualdenial of the legality of a right of retention and its existence as wel. A right of retention has a stronger efect than any other real rights granted by wayof security in that it acts as a virtualy high-priority security right due to its absolute right to refuse delivery, and it is actualy based on the principle of aceptance that doesnot become extinct in the auction proces. However, since the strong security capacityof a right of retention acts as a cause of the special waiver agrement, it is necesaryto improve the problems of a right of retention regarding its efect and those in theauction proces due to its existence. The special agrement that excludes the exercise of a right of retention, which is aright held by the construction contractor in terms of fairnes for the recovery of claimof the price for construction, is for financial instiutions to secure a priority in theexecution of security rights, so it is unilateraly advantageous to these instiutions andunfairly disadvantageous to the recipient. Considering the purpose of the lien system as a legal real right granted by way ofsecurity, special protection value of construction contractor's claim of the price forconstruction, and dominance relationship betwen the contractor, contracte and financialinstiution, it is reasonable to regard the exclusion agrement of a right of retentionwhich prevents the ocurence of a right of retention before its establishment as invalid. It is necesary to provide a provision in Framework Act on the Construction Industry,stating that “a prior waiver agrement that excludes the recipient’s right of retention isinvalid.” The special waiver agrement of a right of retention after its establishment isvalid as in the case of other restricted real right.