유치권의 성립과 부동산경매에서 이해관계인에 관한 고찰 (A Study on Related Persons in the Real Estate Auction and Establishment of the Lien)

서지정보

· 발행기관 : 한국부동산학회
· 수록지 정보 : 부동산학보 / 47호 / 193 ~ 207페이지
· 저자명 : 전장헌

초록

1. CONTENTS (1) RESEARCH OBJECTIVES A lien is a naturally established legal real right granted. Because it has no control authority and preferential payment right for exchange value of the object, it is the real right granted with the weakest effect among current legal real right granted. Because a lien is a real right granted, it can be asserted its right and lien to the object's transferee or buyer by auction (successful bidder). Due to occupations by unclear public announcement methods, an unexpected rightful person for priority mortgage or provisional seizure or real estate auction brings unforeseen disasters to buyers.
Even though real estate has especially high economic values and requires important transaction safety more than anything, a lien with real estate as its object has indefinite connection to make it valid, and therefore theories and precedents are contradicting. The public announcement method of real rights on real estate is occupation according to formalism of Korean civil law. It is an unclear public announcement method deciding only the lien means occupation. Also, regulations to protect exchange values of priority rightful persons were set in Article 91, clause 3 and 4 of Civil Execution Act, but abernahmeprinzip was selected for the lien in Article 91, clause 5 of the same act. Therefore, it caused legal insecurity and unfairness to many interested parties.
Therefore, in this study, the connection of debt and object which is the most important validity requirement of the lien in order to clearly define the range of approved liens and to study how rightful persons of priority mortgages or provisional seizures work in real estate auction procedures with approved liens. It aimed to contribute to fairness and legal stability for both parties.




(2) RESEARCH METHOD For methods of inquiry, analyzing and proving major domestic books and precedents by the Supreme Court and studying and reviewing examples of foreign legislations to focus on systematical problems and legislation problems were selected.




(3) RESEARCH RESULTS Among standards for connection as the validity requirement for a lien suggested by the monistic theory, except the debt originated from the object itself, 'in case considered fairly equal to the foregoing' or 'in case it is directly related with the object' are even more abstract than the standard, 'same legal relation or fact relevance', suggested by the dualistic theory. Their functions as the definite standards for individual cases are being questioned. Also, the dualistic theory naturally approves connection when the debt originated from the object, but if the connection is judged for cases when the debt originated from same legal relation or fact relevance for the right to claim for a return of the object, the lien is approved in a too wide range. This can cause problems of violating transaction safety and legal stability with real right effects of the lien. Also, who has valid requirements for the lien after setting the mortgage and before the seizure, so called "middle lienholder“, can obtain the lien but should not violate the exchange value of the priority rightful person for the mortgage. Therefore, the views of counterforce negation theory are thought to be reasonable.




2. RESULTS About the views of the dualistic theory on connection as the validity requirement for a lien, the connection should not be approved naturally, and a lien should be approved only when there are no other regulations to protect agreed real rights granted or creditor. However, solving all problems related to the connection as the validity requirement for a lien with the interpretation theory may cause problems of legal stability or transaction safety. Therefore, the problems should ultimately be solved by revising the law. Detailedly, the legislations should classify validity requirements of the lien on the objects other than real estate. For real estates, the public announcement method should be revised based on validity requirements to be more suitable for Korean real rights system, and for other than real estates, it should be changed into the concurrent system with right of objection like Germany or France. The common view asserts that a lien can always resist the buyer in auction procedures saying the power of a lien as the real right granted is deprived if actual preferential payment possibility of the lien is not protected. However, this study concludes that it cannot always resist the buyer, but instead, it cannot resist the buyer in auction procedures to protect exchange value of the priority mortgagee and the rightful person for provisional seizure. This study also suggested plans for legislations.

영어초록

1. CONTENTS (1) RESEARCH OBJECTIVES A lien is a naturally established legal real right granted. Because it has no control authority and preferential payment right for exchange value of the object, it is the real right granted with the weakest effect among current legal real right granted. Because a lien is a real right granted, it can be asserted its right and lien to the object's transferee or buyer by auction (successful bidder). Due to occupations by unclear public announcement methods, an unexpected rightful person for priority mortgage or provisional seizure or real estate auction brings unforeseen disasters to buyers.
Even though real estate has especially high economic values and requires important transaction safety more than anything, a lien with real estate as its object has indefinite connection to make it valid, and therefore theories and precedents are contradicting. The public announcement method of real rights on real estate is occupation according to formalism of Korean civil law. It is an unclear public announcement method deciding only the lien means occupation. Also, regulations to protect exchange values of priority rightful persons were set in Article 91, clause 3 and 4 of Civil Execution Act, but abernahmeprinzip was selected for the lien in Article 91, clause 5 of the same act. Therefore, it caused legal insecurity and unfairness to many interested parties.
Therefore, in this study, the connection of debt and object which is the most important validity requirement of the lien in order to clearly define the range of approved liens and to study how rightful persons of priority mortgages or provisional seizures work in real estate auction procedures with approved liens. It aimed to contribute to fairness and legal stability for both parties.




(2) RESEARCH METHOD For methods of inquiry, analyzing and proving major domestic books and precedents by the Supreme Court and studying and reviewing examples of foreign legislations to focus on systematical problems and legislation problems were selected.




(3) RESEARCH RESULTS Among standards for connection as the validity requirement for a lien suggested by the monistic theory, except the debt originated from the object itself, 'in case considered fairly equal to the foregoing' or 'in case it is directly related with the object' are even more abstract than the standard, 'same legal relation or fact relevance', suggested by the dualistic theory. Their functions as the definite standards for individual cases are being questioned. Also, the dualistic theory naturally approves connection when the debt originated from the object, but if the connection is judged for cases when the debt originated from same legal relation or fact relevance for the right to claim for a return of the object, the lien is approved in a too wide range. This can cause problems of violating transaction safety and legal stability with real right effects of the lien. Also, who has valid requirements for the lien after setting the mortgage and before the seizure, so called "middle lienholder“, can obtain the lien but should not violate the exchange value of the priority rightful person for the mortgage. Therefore, the views of counterforce negation theory are thought to be reasonable.




2. RESULTS About the views of the dualistic theory on connection as the validity requirement for a lien, the connection should not be approved naturally, and a lien should be approved only when there are no other regulations to protect agreed real rights granted or creditor. However, solving all problems related to the connection as the validity requirement for a lien with the interpretation theory may cause problems of legal stability or transaction safety. Therefore, the problems should ultimately be solved by revising the law. Detailedly, the legislations should classify validity requirements of the lien on the objects other than real estate. For real estates, the public announcement method should be revised based on validity requirements to be more suitable for Korean real rights system, and for other than real estates, it should be changed into the concurrent system with right of objection like Germany or France. The common view asserts that a lien can always resist the buyer in auction procedures saying the power of a lien as the real right granted is deprived if actual preferential payment possibility of the lien is not protected. However, this study concludes that it cannot always resist the buyer, but instead, it cannot resist the buyer in auction procedures to protect exchange value of the priority mortgagee and the rightful person for provisional seizure. This study also suggested plans for legislations.

참고자료

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