不动产工程承揽人价款债权的担保 -以民法不动产留置权(第320条)和抵押权设定请求权(第666条)为中心-

This article examines the provision of security for claims for construction payment arising from building contracts, with a particular focus on construction works on real property, by reviewing Korean law and corresponding foreign legislative examples. In Korea, with reference to the German Civil Code, the right to demand the establishment of a mortgage was introduced to address this issue(Section 666). In practice, however, the courts have relied primarily on real property liens(Section 320) to resolve disputes concerning construction payment claims. Due to problems in the operation of this approach, a legislative amendment proposal was prepared during the 2013 Civil Code reform process. As an introductory study aimed at reforming the Korean Civil Code with regard to claims for construction payment arising from real property works, this article presents an overview of the discussions under the current law, including debates during the enactment of the Civil Code(Part II), outlines the reform discussions(Part III), reviews foreign legislative models, and briefly proposes possible solutions based on the author’s views(Part IV). Foreign legislative models generally supplement the protection of contractors’ claims through the introduction or revision of the right to demand the establishment of a mortgage. The German Civil Code(former Section 648) originally provided only a right to demand the establishment of a security mortgage for contractors, similar to Korean law. However, a 1993 amendment introduced provisions on the employer’s obligation to provide security(Section 648a), granting contractors the right to demand security in accordance with the progress of the work, as well as the right to refuse performance and to terminate the contract if security is not provided. These provisions were renumbered in 2017 as Sections 650e and 650f. The Swiss Civil Code recognizes a statutory mortgage(Section 837(1)(3)) and grants both a claim for compensation against prior mortgagees and a preferential right to satisfaction(Section 841). The Austrian General Civil Code recognizes contracts for work in Part Two, Chapter 26, and introduced, through the 2005 reform, a provision on security for construction contracts and the employer’s statutory obligation to provide security(Section 1170b), which had not existed in the original code. Liechtenstein, which had previously applied Austrian law, enacted a new Property Law in 1922, establishing statutory security rights over real property(statutory pledges) within the category of limited real rights(Sections 313(1)(3), 315–318), including rules on registration and priority. The Civil Code of the Republic of China(1929), originally modeled on the German Civil Code, provided only a right to demand the registration of a mortgage (Section 513(1)), but was amended in 1999 to recognize a mortgage over the employer’s real property, including provisions on unilateral application for registration and priority (Sections 513(2)–(4)). The Civil Code of the People’s Republic of China, enacted in 2020, also provides a priority right of satisfaction for construction payment claims(Section 807, third sentence), with detailed rules further specified in judicial interpretations(Judicial Interpretation on Construction Contracts (I), 2020, Sections 35–42). Based on this comparative review, the Korean Civil Code(Section 320), following the model of the Japanese Civil Code, recognizes real property as an object of lien while abolishing statutory privileges in general, providing instead for statutory mortgages and statutory pledges only where necessary. Nevertheless, with respect to construction contractors’ claims for payment, Korean law adopts a right to demand the establishment of a mortgage rather than a statutory mortgage(Section 666). The legislative models referenced during the enactment of the Korean Civil Code have since undergone significant reforms, which have not been sufficiently reflected in Korean law. Accordingly, this article proposes that the security for contractors’ claims for payment in real property construction contracts should be structured as a statutory mortgage(a real right), accompanied by detailed mandatory rules—particularly one-sided mandatory provisions—on registration, priority, and enforcement. This approach aligns with developments in the German and Republic of China Civil Codes and would also correct the current practice of resolving these issues through real property liens(Right of retention).