공사도급계약 소송에서 발생할 수 있는 유치권에 관한 여러 쟁점 -대법원 2023. 8. 31. 선고 2019다295278 판결에 대한 평석-

The case at hand concerns a situation in which a lienholder, without the consent of the property owner, unlawfully leased the subject real estate (the liened property) to a third party. Following this unauthorized lease, the plaintiff, who acquired ownership of the property, sought to extinguish the lien by exercising the right to demand extinguishment of the lien (yuchikwon-somul-cheongugwon). While prior academic theories and case law have consistently recognized that not only the debtor but also the owner of the liened property may exercise this right, the Supreme Court's decision in this case further extended the scope of eligible parties to include third parties who acquired the property after the unauthorized lease. However, the Supreme Court failed to provide concrete reasoning or legal grounds for this extension. It did not clarify whether the plaintiff, as a third-party acquirer, originally acquired the right to extinguish the lien, exercised it through subrogation of prior owners’ rights, or inherited it by succession. In my view, the Court's conclusion—that a third-party acquirer may exercise the right to extinguish a lien—is persuasive. A lien, as a security right, is enforceable against all (i.e., has erga omnes effect). Thus, Article 91(5) of the Civil Execution Act adopts the assumption principle (insujuui) with respect to liens. When ownership of the liened property is transferred, the transferee acquires the property burdened by the lien and automatically succeeds to the status of the owner. Consequently, the transferee should be understood to succeed to the right to extinguish the lien as well. Although the Court did not specifically address whether Defendant 1 possessed a civil lien or a commercial lien, it appears that both forms of lien were validly established. However, a prior provisional attachment (gaamnyu) was already in place before Defendant 1's lien arose, and the property was subsequently transferred to G through a compulsory auction based on that attachment. This raises the issue of whether Defendant 1 can assert a commercial lien against G and later acquirers of the property. According to lower court precedents, Defendant 1 cannot assert a commercial lien against G or subsequent owners (including the plaintiff). However, I respectfully disagree with this interpretation and contend that Defendant 1 should be entitled to assert a commercial lien against the plaintiff. The expiration of a statute of extinction (jecheokgigan) is a matter that must be examined ex officio; the court must consider it regardless of whether the parties raise the issue. While the extinction period for the plaintiff’s claim to extinguish the civil lien has not lapsed, it appears that the period for extinguishing the commercial lien has expired. Therefore, the plaintiff may no longer assert extinguishment of the commercial lien, and Defendant 1 retains the right to invoke it. In conclusion, the Supreme Court should not have overturned the lower court's decision but instead dismissed the plaintiff’s appeal on the grounds that Defendant 1’s commercial lien remains valid.The case at hand concerns a situation in which a lienholder, without the consent of the property owner, unlawfully leased the subject real estate (the liened property) to a third party. Following this unauthorized lease, the plaintiff, who acquired ownership of the property, sought to extinguish the lien by exercising the right to demand extinguishment of the lien (yuchikwon-somul-cheongugwon). While prior academic theories and case law have consistently recognized that not only the debtor but also the owner of the liened property may exercise this right, the Supreme Court's decision in this case further extended the scope of eligible parties to include third parties who acquired the property after the unauthorized lease. However, the Supreme Court failed to provide concrete reasoning or legal grounds for this extension. It did not clarify whether the plaintiff, as a third-party acquirer, originally acquired the right to extinguish the lien, exercised it through subrogation of prior owners’ rights, or inherited it by succession. In my view, the Court's conclusion—that a third-party acquirer may exercise the right to extinguish a lien—is persuasive. A lien, as a security right, is enforceable against all (i.e., has erga omnes effect). Thus, Article 91(5) of the Civil Execution Act adopts the assumption principle (insujuui) with respect to liens. When ownership of the liened property is transferred, the transferee acquires the property burdened by the lien and automatically succeeds to the status of the owner. Consequently, the transferee should be understood to succeed to the right to extinguish the lien as well. Although the Court did not specifically address whether Defendant 1 possessed a civil lien or a commercial lien, it appears that both forms of lien were validly established. However, a prior provisional attachment (gaamnyu) was already in place before Defendant 1's lien arose, and the property was subsequently transferred to G through a compulsory auction based on that attachment. This raises the issue of whether Defendant 1 can assert a commercial lien against G and later acquirers of the property. According to lower court precedents, Defendant 1 cannot assert a commercial lien against G or subsequent owners (including the plaintiff). However, I respectfully disagree with this interpretation and contend that Defendant 1 should be entitled to assert a commercial lien against the plaintiff. The expiration of a statute of extinction (jecheokgigan) is a matter that must be examined ex officio; the court must consider it regardless of whether the parties raise the issue. While the extinction period for the plaintiff’s claim to extinguish the civil lien has not lapsed, it appears that the period for extinguishing the commercial lien has expired. Therefore, the plaintiff may no longer assert extinguishment of the commercial lien, and Defendant 1 retains the right to invoke it. In conclusion, the Supreme Court should not have overturned the lower court's decision but instead dismissed the plaintiff’s appeal on the grounds that Defendant 1’s commercial lien remains valid.