부동산에의 부합의 기준에 관한 시론 -대법원 2020. 4. 9. 선고 2018다264307 판결을 중심으로

Abstract

Article 256 of the Korean Civil Act stipulates that the movables (chattel) attached to immovables (namely, pieces of land or buildings) also belong to the owners of the immovables. The Supreme Court of Korea has conventionally proposed two criteria concerning the attachment to immovables: whether the attached things can be separated from the immovables without being seriously damaged or incurring excessive costs; and whether they have distinct economic value and thus can be treated as objects of transaction independently. In practice, however, cases where these conventional criteria cannot give satisfactory explanation, are easily to be found. It is especially so when the owner of the immovables demands the removal of the attached movables, while the (original) owner of the latter claims that he/she is neither obliged nor entitled to take away the movables of which he/she has already lost his/her right of ownership due to attachment. This article aims at offering a more comprehensive explanation applicable to various cases concerning such attachment. This article classified various cases of attachment into two groups: the first group is the positive attachment, which comprises typical cases of attachment in which both parties claim the ownership of the attached movables; and the second group is the negative attachment, which does not enhance the value of the immovables on which the attachment happens, and therefore their owner demands the removal of the attached movables. Furthermore, by considering that the attachment system, similar to expropriation, restricts the ownership of the attached movables, this article tries to propose a new criterion for attachment based on the reduction of transaction cost and balancing of conflicting interests of the relevant parties. As a result, this article explains that the Supreme Court of Korea compares the state of attachment with the state of separation, in which the movables at issue have been removed from the immovables, and decides that the attachment happens if the total utility of the parties concerned is greater under the former state. This is the case for both positive and negative attachment. This new criterion of “balancing conflicting interests” means that the greater loss of utility is incurred from the separation, the more likely the attachment is to be recognized and, to some degree, corresponds to the conventional criteria based on the damage of attached movables or the costs of separation. However, it does not always lead to the same conclusion. The new criterion offers consistent explanation for both positive and negative attachment, while the conventional one often leads to an unsatisfactory result in case of negative attachment. This article, thus, offers a new perspective in relation to the criterion for attachment to the immovables.