유치권의 성립과 행사범위 제한을 위한 몇 가지 고찰

Abstract

If the holder of right of retention loses his/her possession, that right extinguished. Later, even if the owner arbitrarily transferred the possession of the real estate again, it should not be considered as a resurgence of the already extinguished the right of retention. There is a high possibility that there will be a number of interested parties in the interim, and the right of retention will infringe on the interests of them, so there is no reason to protect the holder of right of retention such cases. Because the former holder of right of retention were able to take various protective measures against the his/her claim while they had the right. If it is found that a liability is concurrent with the claim of the holder of right of retention, it shall be deemed that the holder of right of retention can exercise his/her right within the full amount of the claim only after he/she has made tender of performance, and before making the tender of performance, it should be considered that the right of retention is only available for amounts exceeding the monetary debt in the concurrent conditions. And the exercise of the right of retention should not depend on whether the debtor make defence of ‘exceptio non adimpleti contractus’ or set-off. In the same manner, at the end of the lease, where the lessee has debts, such as overdue debts which have not been reimbursed even after deducting from the deposit, the lessee's right of retention according to his/her right to demand reimbursement of useful expenditures shall be allowed only within the extent of the amount exceeding that equivalent. Because the lessor’s debt to reimburse the useful expenditures of lessee has same function as the deposit from the lessor’s perspective, so it is natural to assume that overdue debts and etc. of lessee are deducted from such debt of lessor. Even if not, the debt between lessor and lesse above is very closely related from a single contract. If a lessee exercises the right of retention and makes use of the building as necessary for its preservation or uses a building with consent of a competent person, unless there are a special circumstances, it is reasonable to interpret the intention of the parties as a amount of the profit of its use has been reimbursed for the claim which is secured with a right of retention. Regardless of whether the parties have expressed their intention to the appropriation of performance or not, if the owner of the building is third party, it shall be deemed that the right of retention is only available for right to demand reimbursement of useful expenditures that exceed the profit of its use. Because it is most reasonable to settle claim and obligation between the contract parties, and the any exercise of the right of retention which restricts the ownership of third parties needs to be properly limited, and also there is a risk that creditors acts in collusion with debtors and harm the rights of third parties.