부동산 유치권의 성립과 대항력의 구별

대상판결 : 대법원 2006. 6. 29. 선고, 2004다11971 판결

The paragraph 1 of the Article 320, the Civil Law regulates unlawfulness of establishment of a lien for detention. Also, the paragraph 2 of the Article 91, Act of Civil Affairs Execution provides termination of a lien related to compulsory execution; the paragraph 3 of the same Article stipulates acceptance of a usufructuary right with opposing power; the paragraph 4 prescribes termination by a tenant s choice even for housing security with opposing power; and finally the paragraph 5 of the same Article rules de facto acceptance of a buyer for secured credit of a lien. According to previous common views and precedents, it is regarded that a real estate lien is established by only occupation without registration and that a de facto preferential performance right is secured regardless of the order of establishment. Accordingly, a prior-order right of a person can be infringed. In addition, as reporting a lien in an auction process is not an obligation, such report can cause an auction price to go down and thus a person with a prior-order right to have loss due to the reduction of allotted fund. Meanwhile, if not reported, a buyer can unexpectedly bear additional performance responsibility of the secured credit of a lien as a loss. In other words, a lien to protect a person with a lien who invests capital to an object for the lien by the principle of fairness brings another problem of unfairness that a purchaser s interests and profit are infringed. This problem has been criticized as being against the principle of establishment of a real property right and public announcement, which intend to protect a right by the order of establishment of a real property right. In particular, a recent compared precedent (announced by the Supreme Court on August 19, 2005. Judgment 2005Da22688.) made an epochal judgment that a lien established after attachment begins cannot be opposed to a buyer by the effect of disposal prohibition of attachment. Then, when an attachment is not begun but will be, it can be a problem who should be protected between a buyer and a person with a lien when the lien is established as a post-order right after prior-ordered mortgage, housing security, and provisional seizure, and so on are set in a large amount of money like the respective judgment (Supreme Court on June 29, 2006. Judgment 2004Da11971.). The respective judgment denies the establishment of a lien itself and never mentions about effects (superiority) among the prior-ordered mortgages and a lien, saying that the lien cannot be established because the construction is not completed. It is very different from the original judgment that, when a large amount of prior-order mortgage is already set and even regarding the lien is established, the lien is denied as being against the principle of sincerity in the paragraph 2 of the Article 2, the Civil Law or as detention in the paragraph 2 of the Article 320, the Civil Law. However, the original judgment is not fair as analogical interpretation that the occupation of an object for the lien set by agreement between a building owner and a constructor of a building interior construction is detention. Also, in the reality where a building remodeling construction is common, it is not reasonable to deny establishment of the lien that secures payment for the interior construction as violation of the principle of sincerity just because the large amount of prior-order mortgages is set. Therefore it would be reasonable to determine superiority in the relation between prior-order mortgages and a post-order lien according to the order of establishment of a real property right by distinguishing establishment of a lien from opposing power of it. To do so, it is desirable to adopt a registration system for a real estate lien in