留置權의 牽聯關係에 관한 硏究

A Study on the Relevancy of Lien

Lieo is the right on which the possessor of a thing or valuable instruments belonging to another person may retain possession of the thing or instruments until the claim is satisfied if he has any claim arising in respect of such property or instruments and if payment of the claim is due. [Article 320 (Contents of Right of Retention) If the possessor of a thing or valuable instruments belonging to another person has any claim arising in respect of such property or instruments and if payment of the claim is due, he may retain possession of the thing or instruments until the claim is satisfied.] That is the right recognized to realize the ideology of equity because it is not desirable that the one obliged to deliver a thing belonging to another person is coerced to unilaterally deliver the thing even if he has the credit arising out of it. The core restrictive requirement deciding if lien is acceptable or not is that there should be relevancy between a thing and the credit resulting from it. However, the Article 320 of our Civil Code provision only abstractly defines lien as 「the credit accrued out of a thing or valuable instruments」As a result, conventionally a variety of theories have been presented in connection with the relevancy of lien. In this essay, the evolution and progress of lien in each nation were explored, because the relevancy as the matenalization requirement of lien is the product of experiences accorded in terms of a long histoncal process regardless of a certain logic inevitability, so that they are differently revealed from country to country. Also a sense of values on which to admit the utility of lien system or not was investigated as the concept of relevancy determining the materialization or non-materialization of lien depends on it. Also suggested theories were examined in the aspects as to if they can be consistently applicable references to a controversial case, or come up with a determinant possibility on the materialization of lien, and following conclusion was obtained. In the respect that the standard to decide on the relevancy of lien should present a minimum determinant possibility, in other words, it should be fundamentally accepted on a basis of a dual theory when the credits arising out of a thing and the return claim of it have the same legal and factual causal relations, and in this case, the relevancy shall be excluded if admitting lien through the deliberation by the principle of good faith and sincerity is considered to be illegal. In light of that lien is security interest with universal resistant effects to the world, it should be judged taking into account if it contradicts with other system on Civil Code, or there is another legal remedy in the process of examination.