부동산 유치권제도 입법 방향에 대한 제언

Abstract

The purpose of this study is to present the legislative direction for the revision discussion, which has been repeatedly frustrated just before the revision despite efforts to revise the lien, but has revived in 2023. The lien does not conform to the principle of fairness because it becomes an unfair position compared to other general creditors if the bond is returned to the person who holds the bond. Therefore, in order to comply with this principle, the current civil law has established a legal mechanism to achieve the original purpose of the lien holder by refusing to return the goods or securities until the lien holder, who is the expenditure holder, is reimbursed for his or her bond. However, due to the limitations of the lien system itself, institutional loopholes were exposed in practice, and voices sympathizing with the need for improvement continued to be raised based on the problems revealed. In the case of movable property, the lien system is not very difficult for the lien holder to achieve his or her purpose through occupation, but in the case of real estate, it is true that it has caused many problems as it is treated as an exception to the principle of indivisibility of the lien system, recruitment of acquisitions, and disclosure by registration. As a result, it was often difficult for either the lien holder, the debtor, or a third party in the auction process to obtain satisfaction with their rights. The problem revealed in the operation of the real estate lien system is that it is not easy to judge the consistency between objects and bonds, which are the requirements for the establishment of liens, Because it is an exception to the principle of disclosure by registration, it is difficult to judge the existence of a lien in possession, and the fact that acquisitionism is applied in the real estate auction process, the preferential repayment effect is recognized compared to senior mortgage holders, causing unpredictable damage to buyers, In the auction process, it is difficult to predict the existence of a lien because there is no regulation on reporting obligations, and if the lien occupies the target property, others, such as the owner, cannot use the property and the lien itself cannot use the lien without the consent of the debtor, which reduces the value of socioeconomic utility. Based on these problems, academia and working circles tried to improve. Looking at the efforts for revision so far, there was a discussion on the revision of the lien in 2004, but no amendment was prepared. The revision discussion began in earnest in 2009, and in 2013, the lien, which is widely recognized in movable property, real estate, and securities, was recognized only for movable property, securities, and unregistered real estate, abolished the lien system only for registered real estate, and came up with a plan to recognize the right to claim mortgage establishment for liens, but it did not cross the threshold of the National Assembly and was automatically abolished. The amendment submitted to the National Assembly in 2013 was evaluated as a valid view, such as the abolition of acquisitionism and recognition as a right to claim mortgage establishment, which had been presented as a problem, but many views were suggested that it was incomplete. As the spark of revision has revived, legislators are at a crossroads of choice between preserving or supplementing after abolition, and whether to protect lien holders, debtors, or third parties. In the end, the legislative direction of the real estate lien system will be to come up with measures to minimize realistic problems in harmony with the interested parties of the lien.