유치권과 동시이행항변권의 비교에 관한 연구

Comparative Study on Lien and Exceptio non Adimpleti Contractus

1. CONTENTS (1) RESEARCH OBJECTIVES Even though the comparative discussions on lien and exceptio non adimpleti contractus continue to take place, detailed discussions on the legal issues between the two remain insufficient just yet. So, this study conducts a comparative analysis on similarities and differences between lien and exceptio non adimpleti contractus. (2) RESEARCH METHOD This study investigates history and development process of lien and exceptio non adimpleti contractus in comparison with legislation cases of each country. As well, it bases the logical construction on analysis of existing literatures, precedents, and theories about the relation between the two in civil act of Korea under this historical background. (3) RESEARCH FINDINGS Though lien and exceptio non adimpleti contractus are different, respectively, in purpose, function, properties, application scope, etc., they start from The principle of equity with considerable accordance in application. Therefore, in case that these two happen simultaneously, rather than admitting just exceptio non adimpleti contractus, we need to consider that lien also might be asserted. 2. RESULTS The common ground between lien and exceptio non adimpleti contractus is based on the principle of equity. Though the latter in civil act of Korea is mere receivables which may assert to just contracting parties, lien is valid as real right. Thus, because there is a fundamental difference between lien and exceptio non adimpleti contractus in terms of legal properties, they are discriminated in origination of the right and application scope. Therefore, the civil act of Korea assumes a similar form with BGB by separating lien from exceptio non adimpleti contractus, it is different from BGB in constructing lien as real right.