민법 제367조와 유치권 - 대상판결: 대법원 2023. 7. 13. 선고 2022다265093 판결

Abstract

The subject judgment understands the legislative purpose of Article 367 of the Korean Civil Code(hierafter: KCC) based on the public character of expenses spent by the third acquirer, but the subject judgment overlooks the fact that Article 367 of KCC is a provision that guarantees a priority reimbursement in auction proceedings in consideration of the owner of a mortgaged property who cannot claim reimbursement of costs. The core of Article 367 of KCC lies not in the public nature of the expenses, but in the special status of the person who incurred the expenses (the third-party acquirer). The Supreme Court should promptly overturn its precedent that not only those who have acquired a usufruct or leasehold right over a mortgaged property, but also those who have acquired ownership, fall under the category of a third-party acquirer under Article 367 of KCC. The subject judgment held that a third-party acquirer does not have a claim for reimbursement of expenses against the mortgagor, mortgagee, or auction purchaser, and cannot exercise a retention lien based on the right to priority reimbursement. This is a reasonable conclusion in that, contrary to the title of Article 367 of KCC, the third-party acquirer's right to priority reimbursement is not a claim for reimbursement of expenses against a specific person. In order to receive priority reimbursement in accordance with Article 367 of KCC, a formal claim for distribution must be made. This is because the execution court cannot know whether a third-party acquirer has incurred expenses or the details of such expenses. If a third-party acquirer fails to make a proper claim for distribution regarding the expenses incurred, they cannot claim unjust enrichment from the purchaser at the auction. Moreover, the mere fact that the possibility of exercising a retention right is indicated in the appraisal report, etc., does not justify recognizing the purchaser's obligation to return unjust gains or to reimburse expenses. The only remedy allowed for a third-party acquirer of a mortgaged property is the right to priority reimbursement. Claims for reimbursement of expenses against third parties or a retention lien are not recognized. Article 367 of KCC does not envision the relationship between a possessor and a recoverer; rather, it merely indicates the scope of reimbursement for expenses. In terms of beneficial expenses, there is no debtor to exercise the option in light of the specificity of Article 367 of KCC, so the option inevitably belongs to the creditor(third-party acquirer). According to the interpretation of the civil law, the amount of reimbursement of benefit expenses must be determined according to the choice of third-party acquirer, and the mortgage holder cannot object to this. A clear legal basis is required for reimbursement of the small amount of expenditure and increase to be recognized, so revision of Article 367 of KCC is necessary. Unlike the title of Article 367 of KCC, the third-party acquirer's right to claim priority reimbursement is not a right to claim reimbursement of expenses to a specific person. It is necessary to amend Article 367 of KCC to change its title to "Priority Claim for Reimbursement," limit the third-party acquirer to one who has acquired ownership of the mortgaged property, and fix the scope of priority reimbursement in auction proceedings to the lesser of the expenses incurred and the increase in value.