부동산 유치권의 대항력 제한

Restriction of Effect in Retention Right of Real Estate

Korean Civil Code provides the ‘Retention Right’ as a statutory security right in view of fairness. However, this right, especially, of a real estate has a peculiar characteristic in that it is established by only occupation without registration unlike other real estate right. Besides, this right is the exception of “prior tempore, prior jure principle by combined with Korean Civil Execution Act’s paragraph 5 of section 91 which defines a successful bidder be responsible for reimbursing a retention right holder’s claim. Therefore, a prior-order mortgage holder and a successful bidder in the auction can be infringed to protect a person with a retention right who invests capital to a real estate and this raises a problem. Considering such negative effects of Retention Right in real estate, Supreme Court has made noticeable decisions using the tool of prohibition of disposition by the attachment in the auction procedure and the principle of good faith, even though not restricting the effect of post-order retention right against prior-order mortgage right in general. I questioned whether the existence of a mortgage right can fundamentally restrict the effect of the retention right in view of mortgage right’s catching security value of a certain real estate. Because such attempt was made in Supreme Court decisions about the establishing statutory or customary superficies in relation to the mortgage right. By looking over a series of decisions of Supreme Court, I concluded that the present attitude of Supreme Court is right in interpreting our present Civil Code. However, after considering the revision of Korean Civil Code which includes the abolishment of a retention right of a real estate and recent decisions about a commercial lien and statutory or customary superficies, changes should be made in considering abuses of retention rights and a present tendency of placing much weight on the mortgage holder’s expectations about security values of real estates in economy.