유치권 및 저당권설정청구권에 관한 민법개정안 (The Korean Civil Code Revision Draft for the Possessory Lien and the Right to demand the Registration of Mortgage)

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 63권 / 1호 / 193 ~ 234페이지
· 저자명 : 윤진수

초록

The Korean Civil Code grants the possessory lien to certain types ofcreditors. According to the Code, the creditor has a right to remain inpossession of the property under the lien until the debtor has satisfied hisor her debt. The possessory lien on an immovable, however, has beencriticized for its adverse aspects.
Critics’ arguments are twofold. To begin with, the possessory lien on animmovable is not registered in the register. Hence, other creditors such asregistered mortgagees have difficulty recognizing the existence of thepossessory lien. This is detrimental to certainty of transaction. Further, therequirement of the possession of an immovable by the possessory liencreditor leads to inefficient result, since no one is entitled to use theimmovable in an efficient manner once the possession is taken.
Against this backdrop, the Civil Code Revision Committee of theDepartment of Justice has prepared the Korean Civil Code revision draft toaddress this issue. The outline of the draft is as follows.
Firstly, the possessory lien on an immovable is no longer allowed exceptwhen an unregistered immovable is at issue. Even in this exceptional case,the creditor must demand the registration of mortgage within 6 monthsafter an immovable is registered. Once registered, the mortgage is deemedto have existed from the time when the debt is due.
Secondly, the creditor who had made certain expenditure on anregistered immovable can demand the registration of the mortgage without the consent of the debtor or the owner of the immovable. This registeredmortgage has the same effect as other registered mortgages. This meansthat the mortgagee cannot assert his or her mortgage over other priormortgages.
The above draft is now under its way to final legislation.

영어초록

The Korean Civil Code grants the possessory lien to certain types ofcreditors. According to the Code, the creditor has a right to remain inpossession of the property under the lien until the debtor has satisfied hisor her debt. The possessory lien on an immovable, however, has beencriticized for its adverse aspects.
Critics’ arguments are twofold. To begin with, the possessory lien on animmovable is not registered in the register. Hence, other creditors such asregistered mortgagees have difficulty recognizing the existence of thepossessory lien. This is detrimental to certainty of transaction. Further, therequirement of the possession of an immovable by the possessory liencreditor leads to inefficient result, since no one is entitled to use theimmovable in an efficient manner once the possession is taken.
Against this backdrop, the Civil Code Revision Committee of theDepartment of Justice has prepared the Korean Civil Code revision draft toaddress this issue. The outline of the draft is as follows.
Firstly, the possessory lien on an immovable is no longer allowed exceptwhen an unregistered immovable is at issue. Even in this exceptional case,the creditor must demand the registration of mortgage within 6 monthsafter an immovable is registered. Once registered, the mortgage is deemedto have existed from the time when the debt is due.
Secondly, the creditor who had made certain expenditure on anregistered immovable can demand the registration of the mortgage without the consent of the debtor or the owner of the immovable. This registeredmortgage has the same effect as other registered mortgages. This meansthat the mortgagee cannot assert his or her mortgage over other priormortgages.
The above draft is now under its way to final legislation.

참고자료

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