현행 부동산유치권의 문제점과 민법 일부 개정법률 안에 관한 검토 = Review on the Civil Law Amendment Regarding Right to Retention

다국어 초록 (Multilingual Abstract)

The issues on the current possessory lien on real estate include the expansion of the scope of application of the rights of retention, inappropriate method of public notice, disturbed order of real rights granted by way of security, exercise of de facto senior security right, overuse of possessory lien on real estate, false/misleading possessory lien on real estate, misuse of the right of retention and utility value. Against this backdrop, the Civil Law on the possessory lien on real estate was amended to discard the possessory lien on real estate, in principle, while allowing some exceptions on unregistered real estate. In addition, the amended law allows a person with possessory lien on unregistered real estate to exercise the right to demand settlement of mortgage, which is to lapse unless it is exercised within six months after the registration of the concerned real estate. When it comes to the right of retention, our justice system has had its stance converted from the practically adopted principle of takeover to the principle of extinction. However, I have objection to the elimination of the retention rights for registered real estate and the introduction of the right to demand settlement of mortgage as stipulated in the amended Civil Law. If the retention right over registered real estate, it should be protection based on the principle of fairness and it is obvious to have the bond that can be protected by retention rights excluded from the scope of protection according to the present system, which goes against what is originally intended by the retention rights system. The actual damage incurred by the present system of possessory lien on real estate primarily comes from the above and misuse of retention rights in the real estate auction procedure, and thus solving this issue with policy improvements is deemed more reasonable than a complete elimination of the possessory lien on registered real estate. I don’t see the need for going as far as discarding the right of retention for registered real estate. Instead, I believe consideration should be given to restructuring policies in a bid to resolve pending issues, e.g. acceptance of preferential payment right in auction procedure in conformity with the attribute of security-backed real rights of the possessory lien and the introduction of the lien registration policy.