부동산유치권에 의한 경매의 성질과 절차 = The Nature and Procedure of the Auction under a Right of Retention on Immovables

다국어 초록 (Multilingual Abstract)

The Korean Civil Code as the substantive law entitles the person having a right of retention to sell the property retained at an official auction in satisfaction of his claim(Art. of 322), but it can not be said that the legislative reason of this Article becomes to be certain. Moreover, since the Korean Civil Execution Act as the procedural law provides merely that the auction under a right of retention shall be executed in conformity with an example of the auction to exercise the security right(Sub-Art. of 1, Art. of 274), opinions are controversially divided on the matter what regulations among regulations concerning with the auction to exercise the security right would be applied to the auction under a right of retention. In this paper, concrete procedures and methods concerning with the auction under a right of retention would be scrutinized, being founded on the grasp that the reason why the Civil Code entitles the person having a right of retention to sell the property retained at an official auction is ``to get satisfaction of his claim``. First of all, the right of retention is a peculiar security right that, legally speaking, has not the right to obtain satisfaction of his claim out of the object thing in preference to other creditors, but, actually speaking, has that right. Therefore it is more comfortable for us to grasp the auction under a right of retention as the third type of auction, rather than to seize as a substantial auction or a formal auction. By the way, the focus about discussing the nature of the auction under a right of retention exists in the point that by what procedures and methods the auction under a right of retention shall be executed indeed. not what type the auction under a right of retention shall belong to. If the reason why the Civil Code entitles the person having a right of retention to sell the property retained at an official auction may be found in getting satisfaction of his claim, then the auction procedure under a right of retention should be progressed pursuant to the auction procedure for exercise of security right, unless it is adverse to the nature of the auction under a right of retention. Firstly all encumbrances like security rights are to be extinguished by the auction under a right of retention. If that is granted, demand for distribution of proceeds of sale should be permitted to other creditors, accordingly procedure of distribution also should be proceeded, For the legislative reason exists in making satisfaction of claim of the person having a right of retention, the principle of surplus that the relevant immovables shall not be sold unless it is the case where the proceeds of sale are deemed to be sufficient to clear all encumbrances on immovables should be applied. But the most important problem in the auction under a right of retention is how to distribute the proceeds of sale. The person having a right of retention has not the right to obtain satisfaction of his claims out of the object thing in preference to other creditors in substantial law. Consequently distribution should be made to the creditors before everything else, in the case that creditors who have the preferential right to the person having aright of retention exist. And then the remnants is to be proportionally distributed between the common creditor and the person having a right of retention, Needless to say, when there is no other creditor except the person having a right of retention, he may obtain satisfaction of his claim from proceeds of sale and the remnants is to be paid to the debtor. On the other hand, however, it should be considered that a de facto preferential right is assured to the person having a right of retention, There is no reason to proceed the auction under a right of retention, if the claim of the person having a right of retention cannot be satisfied at all, after all the claims preceding the person having the right of retention have been paid from proceeds of sale. Where the remnants is not sufficient for satisfying the claim of the person having a right of retention, although all the claims preceding the person having a right of retention are satisfied, then the amount of shortage is to be made the successful bidder take over exceptionally. Finally, it should be pointed out that recently Supreme Court has taken the position of similar contents as above.

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