부동산 경매에 있어서 유치권에 관한 연구

A Research about a Lien on a Real Estate Auction - Based on the Cases from Westsouthern Coastal Areas

Unlike the requirements or the recognition of lien at the real estate auction, there are many cases of failing the establishment of lien because the lien reporter have provided a false information or did not possess the lien for the auctioning real estate and due to this, it became the reason of low bidding price due to the damages of taking over the lien, which weren’t expected during the auction process, or delay the real estate auction process by reporting a false lien or have the false lien reporter receive unfair profit. We’ve reviewed the cases from the Westsouthern islands and coastal area regarding this issue, and the lien reported cases, such as the false or disguise lien report, at Mokpo branch, Haenam branch at Gwangju District Court are rather simpler than the lien reports of the other areas, but in the cases of abusing the real estate auction, the real estate buyer can confront on lien claim by raising the objection during the auction process for the permit of sale, immediate appealing on decision of permit of sale, or cancelling the sales contract and charging the returned payment and claiming a lawsuit for non-existence lien, but getting the unexpected disadvantages are no different than the other areas. In order to solve this issue, first, it needs to report all the circumstances which can be the data to determine the existence of lien on the occupation relationship status report of executor and when the executive court interprets the establishment of lien, then it should publicly announced through legislation. Second, the lien, which weren’t reported until the selling date to force the reporting obligation of the lien, will be classified as transfer order application target of buyer but the justifiable authorizer can claim the lien through lawsuit of occupation recover. Third, if the first repayment bond for lien was acknowledged even at the auction process and didn’t report the right of the real estate lien to bond lien until closing date of dividend requirements at the real estate auction process, then misappropriation of lien can be prevented if it’s unable to oppose the buyer. Fourth, for the building, that has possibility for lien to be reported, can investigate the status of possessor in advance and can review the application for action to prevent the violation of the real estate based on the article 44 of the civil enforcement. Lastly, once the lien report form is submitted, then the court can take a legal action of acknowledging the falsity and criminal charge subject of auction interference by sending an invitation and examining the legal action of provisional seizure on disposing the previously banned occupation, lawsuit of non-existence lien, estate of lien reporter, so once documents to vindicate is submitted, then this can prevent falsity or report of disguise lien. In order to follow the ideal for lien, the principles of justice, it needs a systematic improvement regarding the lien on real estate auction process and need more research and conversion of new reception for precaution.