민사유치권 관련 민사집행법 개정안에 대한 비판적 고찰

Abstract

There have been much discussions and commentaries on the appropriateness of the real property lien, the one of the in-rem securities which needs to have a possession instead of registration for the publication. The real property lien has frequently and widely been used by the fraudulent or fake lien-holders mainly in the enforcement or foreclosure procedures, taking advantage of its weakened method of publication. Against these backdrops, the proposed amendments regarding the Civil Act, the Civil Execution Act and the Real Property Registration Act have adopted drastically progressive measures to tentatively allow only the lien for non-registered real property aiming at the ultimate abolition of the real property lien from the whole lien system. The proposed amendments have intended the real property lien to transform into the legitimate mortgage by way of mandating the lien-holder to file a suit for the registration of mortgage on the premise of the real property lien. But the proposed amendments of the Civil Execution Act have a number of loopholes resulted from the hasty enactment without a full-fledged study on the exquisitely delicate civil execution or foreclosure systems. Therefore we have to review critically the whole schemes of the proposed amendments of Civil Executions Act to implement the inconsistency and incongruity potentially and possibly to be incurred in the theoretical application as well as in the enforcement practice.