유치권과 저당권의 경합

The competition of a lean and hypothec

I study on the problems in case of competition of a lien and hypothec through the concrete examples - in case of a return claim of construction charge, nullity or retraction of a sales contract. In case of a return claim of construction charge, there are three problems whether or not to recognition a lien of covenantee competition of a lien and hypothec and limits of an obligatory right to be indebted mortgage. In case of competition of a lien and hypothec, a lien did not have a priority reimbursement right so that hypothec have priority a lien. Regarding to a lien, a vendee hold a position of trust to reimburse an obligatory right to give to pledge mortgage to a lienor. In case of an auction by a lien, a vendee takes charge of a lien in accordance with a principle of acceptance. The problem about recognition limits of an obligatory right to be indebted mortgage of a lien is connection between an obligatory right to be indebted mortgage and the object. A theory about that problem is devided a broad sense opinion and a narrow sense opinion. A leading case adopt a broad sense opinion. Regarding to a broad sense opinion, a mortgagee insist a priority reimbursement right only about real estate, a lienor can receive a priority reimbursement through a claim about a object in point of fact. In case of nullity or retraction of a sales contract, the problems are whether or not to recognition a lien of covenantee, competition of a lien and hypothec. A lien is present in case of recognizing relation of a real right work and choosing a broad sense opinion. A leading case also recognizes a lien of a vendee. In case of nullity or retraction of a sales contract, if a lien is recognized to a vendee, a lienor take a priority reimbursement right in point of fact by a principle of acceptance. And a mortgagee also take a priority reimbursement through to set up hypothec. In result the problem occurs about competition of both parties. In this case, the effect varies as the time that a lien and hypothec are each concluded. This case has a process - registration for hypothec institution → a sales contract → nullity or retraction of a sales contract. In result a vendee can not antagonize a successful bidder and a vendor alegar basis to come from a lien by a return claim about selling and buying price. For solving the competition between a lien and hypothec, first, a standard to solve the problem of connection diverts a principle of factor from a principle of effect, second, a registration system is must bring in for making public of a lien, third, to apply a principle of connection is must reappraised, lastly a lien must divide into two - the thing to have a priority reimbursement right and have not a priority reimbursement right. And if a principle of connection apply the former, a principle of extinction apply the latter, a valid conclusion can be drawn.