저당권 설정 후 압류 전에 성립한 유치권자의 대항력에 관한 연구

Retention Right Holder's Preferential Payment Right and Opposing Power Approved before Attachment after Mortgage Registration

1. CONTENTS (1) RESEARCH OBJECTIVES Many studies concerning the problems of retention right have been conducted in the conventional academic community, but the retention right holder's preferential payment right and opposing power approved before attachment after mortgage registration has not been much discussed. Therefore, it seems that intensive discussion on this matter is in urgent need. As a result, supposing that a person holds established requirement of retention right after real rights grated by way of security, this study investigates whether the person's opposmg power will be recognized or extinguished as well as its necessity. (2) RESEARCH METHOD This study examines the theories and related prec어ents in Japanese academic community which can form the basis for the retention right holder's opposing power approved before attachment after mortgage registration by referring to Japanese literature, and at the same time it analyzes main domestic literatures and precedents including several scholars' opinions to revive new interpretation and tasks. (3) RESEARCH FINDINGS As above, this study looked into whether a retention right holder's opposing power would be recognized or not, including theories on abernahmeprinzip and acquittance approved before attachment after mortgage registration. Therefore, the retention right holder acquires the retention right approved after mortgage registration, but he/she cannot execute opposing power to mortgage holder settled in advance. Thus, to the effect that 'the theory to recognize preferential payment right and opposing power' is appropriate, it is thought that a theoretical foundation is prepared which can acquit retention right. 2. RESULTS Some problems arise in the theαy of recognition on preferential payment right and opposing power approved in updated precedents, because the right of retention which has no particular way of registration besides occupation can exercise opposing power to established mortgage in advance are come near breaking down legal order based on registration. In this case, however, with regard to the recognition of the right to apply auction to this retention right holder, 'the theory of recognition of preferential opposing power’ will be appropriate, considering the attitude of Civil Act, theories, and precedents: the constitution of retention right, other subordinated mortgage than unsubordinated mortgage, and even the lessee's right in housing lease protection act, or commercial building lease protection act are recognized.