건축계약상 수급인의 유치권 제한

A Restriction on Right of Retention of Contractor over Building Contract

If a contractor goes into bankruptcy while a contract-caker is building a structure by contracts of completion works, then a contract-caker has the right to assert his lien on the structure, and, if necessary, he can also assert his lien on the estates. This is because the money collected from the auctioned structure may not be able to cover all the construction costs. In this case, the lien for the estate is on the line of “a lien of commercial Law , not “a lien of Civil Law. This is because an estate doesn t come into being a lien of Civil Law. Moreover, a lien of commercial Law can increase infinitely on the ground or the existence without connection between the object and an obligatory right. Therefore, the gain and loss between a mortgagee and a lien person would run counter to each other. It stands to reason that an ahead real right takes precedence of a later real right as a general principles of the Law of reality. However, if a lien of commercial Law comes into being, it goes against general principles of a Civil Law, and a later lien may be in defiance of a former mortgagee. For this reason, it is reasonable that a lien of commercial Law needs to be restricted. To prevent this unreasonable problem from occurring, we must negate Contract-Caker s lien of commercial Law about an estates. However, a lien of commercial Law comes into being, we must put a construction that a former mortgagee take preference of a later lien.