체납처분압류 이후 경매개시결정등기 전에 성립한 유치권의 대항력 - 대상판결 : 대법원 2014. 3. 20. 선고 2009다60336 전원합의체 판결 -

Abstract

This paper critically analyzes the Supreme Court's en banc decision rendered on March 20, 2014 (case no. 2009Da60336) which decided whether a lien-holder who obtained a lien after the attachment in the procedure of arrears but before the registration of actual commencement of the auction has an opposing power against a successful bidder of auction procedure. Majority opinion decided that the attachment in the procedure of arrears unlike the attachment in auction does not commence the civil execution procedures and the effect of lien obtained hereafter should not be limited only for such reason. Against the majority opinion, the dissenting opinion stated that because the effect of the attachment in the procedure of arrears and in the procedure of auction is the same, a lien-holder who has the possession by transferred from the debtor after the effect of the attachment in the procedure of arrears must not have opposing power against the successful bidder in the procedure of auction. In the decision, the majority opinion and the dissenting opinion reached at different conclusions due to different perspectives in the grounds for recognizing an opposing power of lien and the actual function of attachment in the procedure of arrears. Therefore, this paper analyzed the two issues and reasoning of the decision in the perspective of the benefit adjustment of stakeholders. Firstly, in the procedure of auction, regarding the grounds for limitation of lien's opposing power, precedent cases suggest the effect of injunctive relief of the attachment as its ground as emphasized by the dissenting opinion. However, while the majority opinion did not mention the effect of injunctive relief of the attachment, it suggests 'the trust of the procedure of auction and procedural stability' as its grounds. Regarding this, the authors argued that 'the effect of injunctive relief of the attachment' is still a valid ground for the limitation of lien's opposing power and proved that 'the effect of injunctive relief of the attachment' as a ground for legal limitation and 'the trust of the procedure of auction and procedural stability' as a ground for ideological and political limitation to limit lien's opposing power. Secondly, with regard to the right to exercise the lien by the lien-holder against the purchaser in auction procedures, the majority opinion denied the limitation of the opposing power of lien emphasizing that the attachment procedures of arrears are different from the attachment of the civil execution procedures, whereas the dissenting opinion criticised that the difference in the two procedures should not serve as the grounds for limiting the opposing power of lien. For this, the authors supported the majority opinion for the ground that the actual function of attachment in the procedure of arrears is different from the attachment of the civil execution procedures. Lastly, the authors regarded the issue relating to the opposing power of the lien established after the attachment as the management of the conflicting earnings between the concerned persons; more specifically between the creditors including the mortgage established prior to the attachment and the lien. Thus, the authors opined that the attachment in the procedure of arrears should not serve as the ground to resolve the conflicts between the lien and mortgage in a valid manner, while the opposing power of the lien established at the time of the decision of the commencement of public auction procedures or until the notification of the public auction must be valid.