부동산 유치권의 개정방안에 관한 연구 - 유치권 제도의 폐지에 대한 검토를 중심으로 -

In civil law, a lien is a security interest that allows a person in possession of another's property or securities to hold the property or securities until the debt is paid. However, because liens are publicized by occupation rather than by recording, it is difficult for outsiders to determine whether a lien exists, and there are many cases of abuse of false liens. In order to solve these problems, the Korean Supreme Court has interpreted the law by (1) applying the principle of extinguishment rather than acquisition in the case of an auction at the request of a lienholder, and (2) limiting the lienholder's ability to counterclaim or defend against a lien established after foreclosure. Although interpreting precedent to solve problems related to liens is valid, it is not easy to overcome the limitations of current law through interpretation alone, so various legislative proposals have been proposed by academics. One is to abolish real estate liens, and the other is to retain real estate liens and supplement the relevant system. It is true that the lien system is necessary to protect small contractors or creditors at construction sites. However, in reality, there are more cases of lien abuse, and even if it is a genuine lien, even if the amount of the secured debt is small, it prevents the full use and profit of the real estate, thereby excessively harming the right to use and profit from the real estate. In light of these considerations, it is appropriate to abolish real estate liens, whether registered or unregistered, and to recognize the right to mortgage as provided in Article 369(3) of the Amendment. However, in order to completely abolish real estate liens, it is necessary to establish a system that protects the interests of creditors (existing lienholders) in the property as follows. (1) The priority of the claim should be bifurcated, so that when a creditor exercises a mortgage that is established as a mortgage-setting claim, the creditor's right of priority of the claim should be recognized for the increase in the value of the object within the scope of the secured debt. ② Introduce a method to allow mortgages on unregistered real estate or to disclose the amount of the mortgage. In this way, if a lien is established pursuant to a lien establishment claim after the building is registered, the contractor's bond should be prioritized in comparison with other mortgagees who acquired a mortgage after the completion of the new building. In order to prevent lien-related disputes, in addition to recognizing the subcontractor's right to direct payment to the contractor, it should be stipulated that, unless there are special circumstances (such as the provision of collateral), the subcontractor cannot claim payment of a substantial amount of the subcontract price from the contractor, and the subcontractor's subcontract price bonds to the contractor cannot be attached or assigned to the extent of the subcontractor's subcontract price bonds.