부동산 유치권의 개선방안 - 2011년 민법개정시안을 중심으로 - (Alternatives to the Right of Retention of Immovable Property - Discussions on the 2011 Draft of the Civil Code Revision -)

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 55권 / 1호 / 339 ~ 384페이지
· 저자명 : 김재형

초록

Whether or not to abolish the right of retention of immovable, thereby confining its use to movables, has become a major legislative agendum in the latest scene of civil code revision efforts. While a growing number of academics generally believe that the nation's legal system should be better off without it, finding the single best alternative is proving a daunting task since it can be possibly replaced by any number of new instruments.
The current Civil Code of Korea stipulates that three types of real rights may be created for the purpose of furnishing security: right of retention, pledge, and mortgage. As for the right of retention, immovables as well as movables can be the object since Article 320 simply provides for that this specific form of right may be established on “another person's property." Allowing right of retention on immovables while setting possession as the method of publication, however, does not accord with the general publication method of other immovable property rights, namely registration.
It is in this context that the Fifth Subcommittee of the Civil Code Amendment Committee has come up with a new draft on right of retention that will basically replace it with the right to demand creation of mortgage on immovable property. Introducing this alternative will relieve the incongruity of recognizing a property right that does not appear on the real estate registry. Moreover, those who have paid for expenses on immovable properties (or those entitled to create a right of retention on immovables for any other reasons) may take advantage of this new system to more evidently publish their right by declaring their mortgage right on the registry. It is expected that this will ultimately put an end to the numerous disputes arising out of retention rights established on immovables, and there will be fewer unregistered property rights, which in turn will allow the real estate registry to function as a stronger means of publication.
In order for civil code revision efforts to bear fruit, it should be demonstrated that this can actually be a reasonable solution to the many legal problems that we witness every day. I hope that the new draft on right of retention, with further discussions and deliberations, will do its part for resolving such problems.

영어초록

Whether or not to abolish the right of retention of immovable, thereby confining its use to movables, has become a major legislative agendum in the latest scene of civil code revision efforts. While a growing number of academics generally believe that the nation's legal system should be better off without it, finding the single best alternative is proving a daunting task since it can be possibly replaced by any number of new instruments.
The current Civil Code of Korea stipulates that three types of real rights may be created for the purpose of furnishing security: right of retention, pledge, and mortgage. As for the right of retention, immovables as well as movables can be the object since Article 320 simply provides for that this specific form of right may be established on “another person's property." Allowing right of retention on immovables while setting possession as the method of publication, however, does not accord with the general publication method of other immovable property rights, namely registration.
It is in this context that the Fifth Subcommittee of the Civil Code Amendment Committee has come up with a new draft on right of retention that will basically replace it with the right to demand creation of mortgage on immovable property. Introducing this alternative will relieve the incongruity of recognizing a property right that does not appear on the real estate registry. Moreover, those who have paid for expenses on immovable properties (or those entitled to create a right of retention on immovables for any other reasons) may take advantage of this new system to more evidently publish their right by declaring their mortgage right on the registry. It is expected that this will ultimately put an end to the numerous disputes arising out of retention rights established on immovables, and there will be fewer unregistered property rights, which in turn will allow the real estate registry to function as a stronger means of publication.
In order for civil code revision efforts to bear fruit, it should be demonstrated that this can actually be a reasonable solution to the many legal problems that we witness every day. I hope that the new draft on right of retention, with further discussions and deliberations, will do its part for resolving such problems.

참고자료

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