민법 제324조 제2항을 위반한 유치물 무단임대행위의 종료 후 유치물을 취득한 자의 유치권소멸청구 -대법원 2023. 8. 31. 선고 2019다295278 판결-

This paper analyzes the Supreme Court decision of August 31, 2023 (2019Da295278), concerning a lien-extinction claim by the acquirer of property after the termination of an unauthorized lease in violation of Article 324(2) of the Korean Civil Code. The Court recognized the acquirer's right to demand extinction of the lien, but without sufficient doctrinal explanation. This study supplements the reasoning by examining the nature of the lien and the legal status of the lienholder, who is both a secured creditor and custodian subject to a duty of care under Article 324. Although a lien is not intended for use or profit, the lienholder may use the property with the debtor's consent, or without consent when necessary for preservation. Article 324(2) is thus interpreted as a provision on the right of use, distinct from the duty of care in Article 324(1). If such use exceeds its scope and creates risk for the debtor or owner, extinction of the lien may be claimed. The Court's conclusion that the acquirer could assert this right despite the prior unauthorized lease having ended is therefore justified.