유치권에 대한 매각조건으로서의 인수주의와 소멸주의

Abstract

Lately, the Supreme Court judged 3 important judgements about possessory lien, in other words, the first, judgement about possessory lien as perfunctory auction of partition of property jointly owned, the second, judgement about auction of possessory lien by lien holder, and the third, judgement about possessory lien in action of security rights execution. By the way, the Supreme Court judged that the possessory lien should be extinguished in the first and second judgements because auction of the possessory lien in the first and second cases had to be processed by the example of auction of security rights execution in Article 268 of Civil Execution Act, which follows “the principle of a extinction”. And extinction of possessory lien in auction is legal auction condition, the Supreme court thinks that the possessory lien should be extinguished naturally if the execution court does not make a decision to change the legal auction condition especially. On the other hand, in the third judgement, the Supreme Court judged that the possessory lien in auction of security rights execution does not become extinct because the principle of takeover is legal auction condition in accordance with the provision of Article 91 section 5 of Civil Execution Act which takes the principle of takeover. In other words, even though they are from same possessory lien, I think that the difference of standard between the former and the latter is a problem. In the first and the second cases, because following the example of auction of security rights of execution in auction of the possessory lien means to sell at auction the procedure of auction of security rights execution, even though in the former cases the possessory lien should be taken over by the buyer in accordance with the provision of Article 91 section 5 of Civil Execution Act, it is unfair that the Supreme court judged the possessory lien is extinguished. Therefore, in accordance with the provision of Article 91 section 5, the possessory lien should be taken over to the buyer, if the courts would like to extinguish the possessory lien in auction, the courts should change the legal auction condition to the special auction condition that the possessory does not be taken over but extinguished. So the former judgement should be changed like the latter.