피담보채무의 변제기 유예가 유치권에 미치는 법적 효과 ─대상판결 : 대법원 2022. 12. 29. 선고 2021다253710 판결─

The Supreme Court overturned the lower court’s decision, which had ruled that a right of retention did not exist. The case involved an agreement to postpone the due date of the debt after the auction commencement registration had been made, while the right of retention holder continued to possess the property after the due date of the secured debt had already arrived before the auction commencement registration. The Supreme Court held that the right of retention was valid. However, it cannot be concluded that a right of retention, once established, automatically extinguishes merely due to the postponement of the due date of the secured debt. Furthermore, interpreting the agreement as implying an intention to extinguish the already established right of retention would not align with the principles of interpreting declarations of intent. Accordingly, it is reasonable to assume that the intent of the agreement to defer payment between the parties in the subject judgment does not extinguish the lien that has already been established solely by the agreement to defer payment in this case, and that the existing lien continues as is. I argue that if the payment period of a secured debt is postponed after a lien is established after the payment period has already arrived, this does not become a ground for extinguishment of the existing lien, but only affects the exercise of the lien. Nevertheless, the Supreme Court’s decision aligns with practical fairness from the perspective of protecting the interests of parties involved in the auction process. The right of retention has been one of the key topics in discussions about revising the Civil Code. However, the amendment bill proposed by the government in 2013, which aims to address the issue of retention rights in real estate, has limitations that prevent it from solving the problem. In particular, recognizing retention rights on unregistered real estate renders the abolition of real estate retention rights nearly meaningless. To address these issues, it would be more appropriate to amend the law by excluding real estate from the scope of the right of retention and allowing retention holders to participate in auction procedures on equal footing with other general creditors.