부동산 유치권의 대항력 제한에 관한 법리 연구 - 대법원판결과 관련하여 -

In relation to the limiting the opposing power of real estate liens, the Supreme Court recognized the opposition of the opposing power based on the principle of the opposing power in the 2008 170763 ruling on the conflict between the opposing power and the ruling of the previous ruling of 2005. However, in the 2005da22688 ruling (the establishment of lien after seizure), the first landmark ruling to limit the opposition of lien by imposing the ban on disposal was made, sparking controversy about lien. The debate between academic and industrial field was hot over the factual disposition of the transfer of possession to the disposition of the prohibition of disposition, and the Supreme Court, unlike the seizure, is a logical consequence of not looking at the factual disposition as the disposition of the prohibition of disposition. It denied the opposition to lien by introducing the general and abstract bypass law of procedural stability. However, it is judged that the conventional wisdom caused confusion in the issue of the restriction of the opposing force of the lien because it was confined to the dogma of the disposition act and did not escape from the idea that the disposition of the disposition prohibition act was only a legal disposition act and misunderstanding. In the end, the futile argument caused by a disposition of the problem of the opposition can be ended by converting the ‘disposition’ into ‘countermeasures’, and according to the anti-force restriction theory, no further debate on the disposition act is required. Furthermore, the 2009 da19246 ruling (preemption) and the 2009 da60336 ruling (preemption of delinquent disposition) are valid to return to the same legal principle as the 2005 da22688 ruling (exemption), and the new ruling after the return and the opposition to the 2009 da60336 all-agreement ruling are valid. I think it is right to judge based on the ‘restriction of counter-force’ as in the new interpretation theory because there is a problem. The legal principle that will be applied to the restriction of the counter-force of lien in the future is right to be right based on the ‘no-disposition’ (the ‘anti-force restriction’ according to the opinion) and principle of good faith. Finally, the ruling can only gain trust from the people when it governs the dispute with the general and abstract principle of legal stability of the enforcement procedure or the appropriateness of the operation, and the clear legal principle of ‘restriction of counter-force’ based on the provisions of the actual law or at least the rational interpretation theory based on the actual law. The solution of special problems, not the daily life of human history, is not solved by retreating to the periphery, but it is only possible and objective trust when entering the center and observing and discussing things from there. Writes in anticipation of the Supreme Court’s Copernican prelude.