유치권에 관한 연구 - 대항력제한을 중심으로 - (대법원 2009. 1. 15. 선고 2008다70763 판결)

Abstract

The Korean Civil Act provides the right of retention as a statutory real security right. The right of retention entitles the person who possesses a thing or valuable instruments belonging to another person and has any date-matured claim arising in respect of such property or instruments to retain possession of the thing or instruments and refuse delivering it until his claim is satisfied(Article 320 of the Civil Act). But this right of retention has many peculiar characteristics which are dissimilar to other real security rights. Just the above characteristics of this right of retention raises many difficulties in interpretation and application of this right. One of them is the problem of counterforce of this right of retention. The purpose of this theses is to commentate one decision of the Supreme Court, namely Supreme Court Decision 2008Da70763 Decided January 15, 2009. This decision makes judgment on two issues. ①One is that the person who gets to hold the right of retention subsequent to a seizure on immovables shall not be eligible to oppose the successful bidder in the auction procedures. ②The other is that the person having this right shall be eligible to oppose the successful bidder in the auction procedures, in case where this right accrues after the right to collateral security has been established and the auction procedures for exercise of the right to collateral security is progressed. Now let the first issue be considered. In case where the right of retention originates after a seizure on immovables, participants to auction is going to declare bid price as possible as low, when the person who has this right has reported this right to the court in the auction procedures. If so, prior-order creditors suffer damage, because the amount to be distributed to them becomes less. On the other hand, even though the person who has this right has not reported this right to the court in the auction procedures, a successful bidder who is not aware of that right is forced to reimburse the claims that are secured by that right, so ultimately he suffers damage. By the way, it becomes to admit exception to the principle of "Prior tempore potior jūre" in regard to the order of priority among real rights that the person who holds the right of retention is eligible to oppose any person at any time. However, it may well be questionable whether it is of value to protect the claims that are secured by the right of retention so far as not to protect all creditors even including execution creditors and persons who hold the right of a prior-order security. When a seizure is levied on an object matter, then an effect not to dispose it comes into force(92Ⅰ& 83Ⅳ of the Civil Procedure Act). The above-stated word 'dispose' means doing an act that is feared to diminish exchange value of it. The act to make a right of retention establish by transferring possession and originating a secured claim comes certainly within disposition prohibited by way of a seizure. Consequently it is proper that the person who gets to hold the right of retention after the effect of a seizure has accrued by way of an entry of a ruling to commence an auction procedure in the register can not oppose the successful bidder in the auction procedures. Therefore the first standpoint of the Supreme Court Decision 2008Da70763 is appropriate. And next let the second issue be considered. It is doubtful that the person having the right of retention can oppose the person who holds a prior-order security right. It is very absurd that the person having the right of retention can get preferential payment practically against to the person who holds a prior-order security right. That result comes to destroy the order of security rights which is based upon the principle of publicity. Moreover, the secured value which the person who holds a prior-order security right has estimated at the time of establishing that security right should be protected, and that secured value must not be damaged by the right of retention which has accrued after that security right. Consequently it is proper that the person having the right of retention can not oppose the person who holds a prior-order security right. Therefore the second standpoint of the Supreme Court Decision 2008Da70763 is not appropriate.