유치권의 성립요건으로서 물건과 채권간의 견련성

A Study about Correlation between Bonds and Things as an Essential Condition of the Lien

1. The article 320 of Korean civil law provided ｢bond concerned about the things｣, which was from the article 295 of Japan civil law. This Japan Civil Law that had been influenced by French Civil Law acknowledged lien as real rights granted by way of security. Nevertheless, in terms of correlation between bonds and things, we acknowledged the article 273 of German civil law which recognized bond-like right of payment denial. Duality theory which was predominant this time admits ‘① bond generated by object itself’ and ‘② bond generated by the right of return claim of object or legal and factional relations.’ (For your reference, ‘①’ falls within the article 273-2 of German civil law, and ‘②’ falls under the article 273-1 of German civil law. Article 273 of German Civil Law provides a lien as ‘bond-like right of payment denial’, and is not binding upon the third party based on a real right of things. However, our Korean Civil Law has a binding effect on the third party since we acknowledged the provision regarding lien as a real right of things. Thus, some problems would occur if we bring the viewpoint of German Civil Law into the ours as the standard of judgment of the conditions of lien, since we recognize a lien as a real right, which have an absolute binding effect upon third parties. 2. In terms of the lien as the statutory real right granted by way of security under Korean Civil Law, considering that it involves possession of the object until the debt is paid where there is no value in exchange, and is not regulated under the Law of Reality where superiority and inferiority are determined by the order of the completion of real rights, the standard of judgment of the conditions of lien should be carefully determined through comparative study of other legal principles and work of the interest balancing method. According to that fact, the ‘②’ mentioned above has problems as a general standard for the conditions of lien since it has many exceptions to the lien, and even in case of accepting that idea, it is less likely to admit the second theory since it infringes on another mortgagee’s right to be paid and the safety of business. Furthermore, it also could be achieved through the right of objection based on performance at the same time. Considering the lien having special characteristics and the fact that the third party (a possessor or a mortgagee) should not be applied against, judging the correlations between bonds and a thing as the conditions of lien, range of bonds should be limited to ‘①, bond generated by object itself.’ Further, in terms of the right to demand compensation based on the thing itself, the possessor should be liable for the wrongful acts. 3. In the meanwhile, the Supreme Court provided two standards for the conditions of lien under the first theory ‘①’ as the predominant opinion in this issue. Facts are as follows. C entered into a subcontract with B on window construction of apartment houses which provide 56 residents. The money C spent on has been occurred from the construction of the apartment houses, thus, C could put a lien on that. And when C insists a claim of lien while possessing D’s house, it would be resolved by applying the principle of indivisibility. Therefore, using the second standard ‘② bond generated by the right of return claim of object or legal and factional relations’ to judge the conditions of lien is unnecessary and does not have actual profits. Thus, it is not proper to set the second opinion as a standard for judging the conditions of lien.