부동산 유치권의 개선방안에 관한 연구

Abstract

This study has been about some troubles caused by right of retention of immovable, legislation of foreign countries, assumptions on the existence or abolition of the right. Also, this study dealt with a matter of primary consideration when it comes to enact a new law and suggestion of necessities to discuss about the right of retention of ship. Some alternatives for the current right of retention of immovable have been discussed, as the right has more side effects than its benefits for security of claims. For example, the right does not apply principle of precedence, method of publication and there are some troubles in the process of auction resulted from principles of takeover in civil execution act. Unfortunately, it is so complicated that there must be multiple solutions for them. Since there are issues concerned about the right of retention such as exercising right of ones who have the right without registration for it and preserving the right of parties interested. Therefore, we have come to a conclusion that providing a right to demand creation of mortgage of those who have paid for expenses can be a proper alternative. It is possible for the right to substitute the right of retention of immovable, as it helps people to exercise right a preferential reimbursement, to decrease expense of social costs caused by making false or exaggerated returns in the process of auction and to conform with legislation of foreign countries without having method of publication. However, it would be controversy whether a possession would be mandatory and whether the other parties of registration should be limited to debtors. Even though there is no other solution unless enact a different law, the way that does not require possession to be crucial factor seems like a proper way as the system is to improve the method of publication that has been fundamental problem of the right of retention. In addition, permitting the right to demand creation of mortgage for debtors who own real estate among the other parties of registration would be appropriate, as we consider the validity of current right of retention to be the strongest ever. Last but not least, whether the right of retention of ship, special type of movable assets, need to stay or not should be considered especially. Korea is the best when it comes to shipbuilding whose concept includes shipbuilding, rebuilding and repairing shipbuilding from time to time. There are lots of problems concerned with the right of retention of ship. Problems mostly related to the case when shipbuilders repair the vessel of foreign country, they cannot ask for their right of retention of ship when right of retention of immovable is not effect anymore and right to demand creation of mortgage is allowed for those who have paid for expenses. Also, they cannot register the creation of mortgage. As a result, it causes so many troubles to shipbuilding repairers to collect debt. In respect of that, there should be active discussion to resolve these problems.