민사법적 시각에서 건축부지를 둘러싼 저당권과 상사유치권의 관계에 관한 재해석

Abstract

There are many differences between commercial lien and civil lien, and there is a clear difference in experience as a requirement for establishment. In the past, problems based on this difference between the two did not occur, but recently, some problems have been mass-produced based on the difference between commercial lien and civil lien. The main problem is that if there is a mortgage on the building site or site, civil lien cannot be claimed. Recently, it is a topic that can be claimed as commercial lien on the same issue. This is because the commercial lien does not require affiliation with the building site or site among its establishment conditions, so it is possible to argue that a commercial lien can be established for the building site or site. Therefore, it is judged that the time has come to review the reasonable position of the commercial lien in relation to the mortgage. Domestic and Japanese theories and precedents regarding the status of commercial lien, including the relationship with the mortgage in the building site or site, were reviewed. As a result, the opposition theory was judged to be a little more reasonable than other legal principles, and the following main issues were reviewed focusing on the opposition theory. In the issue of the rational status of the commercial lien according to the opposition theory, the items to be reviewed are: First, if there is a mortgage on the land, it is reasonable to apply the position of the rivalry theory to the reasonable status of the commercial lien. In case of following the theory of opposition, in principle, the relevant commercial lien cannot be opposed against the mortgagee of the preceding site, so it is extinguished by the meridian of the object of retention, and the effect of preferential payment cannot be asserted. Second, if there is a mortgage in the building site, if it is proved that the contractor has invested in the value increase of the object and the value of the object has increased accordingly, it is reasonable to recognize the commercial lien for this increase in value. However, it is reasonable to recognize the commercial lien for the cost of the commercial lien, limited to the case where the value of the relevant object exists through appraisal, etc. for the cost incurred by the commercial lien holder. In terms of comparative law, this is reasonable when examining the legal principles of Germany, Switzerland, the United States, France, and Austria. Matters to be reviewed on the rational status of commercial lien rights through review of Supreme Court precedents are: It is reasonable that the lienholder cannot oppose the mortgagee. In addition, in the above situation, even if a mortgage is established after a significant portion of the construction work has been completed, if the opposition theory is applied, it is reasonable to compare the time when the relevant mortgage was established and the time when the commercial lienholder occupied it in chronological order. As such, the legal theory of the opposition theory is reasonable because it can harmonize the positions of many parties, such as mortgage holders and commercial lien holders, in a balanced way in various procedures for construction work against the site. Second, the rational position of the commercial lien on the mortgage was reviewed by comparing the mecanic's lien system with the counter-relationship theory. As a result, it is reasonable to examine the position of commercial lien on the mortgage in the land by comparing the ‘time of registration’ of the mortgage and the ‘time of commencement of possession’ of the commercial lien, not the ‘time of construction start’ of the commercial lien in chronological order. Third, in case the commercial lien cannot be opposed to the mortgage in the case of commercial lien, the legal principle of extinction theory that the commercial lien disappears altogether is not valid. This is because there is a possibility of denying the legitimate contractual relationship between the owner, who is the debtor, and the commercial lien holder, and the general trend and property effect of the commercial lien can be completely denied, and it is contrary to many domestic and Japanese precedents. Fourth, the Supreme Court decision (2005da22688) overlooked the difference between civil lien and commercial lien on buildings and land, so it is reasonable to review the difference in status between civil and commercial lien when focusing on land.