유치권 및 저당권설정청구권에 관한 민법개정안

The Korean Civil Code Revision Draft for the Possessory Lien and the Right to demand the Registration of Mortgage

The Korean Civil Code grants the possessory lien to certain types of creditors. According to the Code, the creditor has a right to remain in possession of the property under the lien until the debtor has satisfied his or her debt. The possessory lien on an immovable, however, has been criticized for its adverse aspects. Critics’ arguments are twofold. To begin with, the possessory lien on an immovable is not registered in the register. Hence, other creditors such as registered mortgagees have difficulty recognizing the existence of the possessory lien. This is detrimental to certainty of transaction. Further, the requirement of the possession of an immovable by the possessory lien creditor leads to inefficient result, since no one is entitled to use the immovable in an efficient manner once the possession is taken. Against this backdrop, the Civil Code Revision Committee of the Department of Justice has prepared the Korean Civil Code revision draft to address this issue. The outline of the draft is as follows. Firstly, the possessory lien on an immovable is no longer allowed except when an unregistered immovable is at issue. Even in this exceptional case, the creditor must demand the registration of mortgage within 6 months after an immovable is registered. Once registered, the mortgage is deemed to have existed from the time when the debt is due. Secondly, the creditor who had made certain expenditure on an registered immovable can demand the registration of the mortgage without the consent of the debtor or the owner of the immovable. This registered mortgage has the same effect as other registered mortgages. This means that the mortgagee cannot assert his or her mortgage over other prior mortgages. The above draft is now under its way to final legislation.