滯納處分押留와 留置權의 效力

Abstract

In the case that defendants acquired the liens on the real estate under dispute afterit had been attached in the procedure of disposition for arrears, the Korean SupremeCourt (hereafter the Court) rendered an en banc decision (case no. 2009da60336,hereafter the Decision). The issue of the decision is whether the lienholders(defendants) can claim their rights against the preexisting mortgagee or the successfulbidder in the auction. The purpose of this essay is to analyze the Decision in acritical way. Previously the Court set a precedent (hereafter the Precedent) to the effect thatsince the attachment in the procedure of auction can invalidate any act of dispositionwhich has been done after the attachment, the lien acquired following the attachmentcannot claim its effect against the successful bidder. In the Decision, a dissentingopinion holds that the lienholders (defendants) cannot claim their rights against thepreexisting mortgagee or the successful bidder. The rationale is that since the attachmentin disposition for arrears has the same legal effect as that in auction, the Courtshould rule on the case based on the Precedent and therefore limit the right of thelienholders. However, the Precedent can be criticized for the following reasons. Firstly, because of our legal system that is designed to protect the right of the lienholderirrespective of the time of acquisition of the lien, the lien can be valid eventhough it is acquired posterior to the attachment. Secondly, the lien is supposed tobe acquired by means of transfer of possession, but transfer of possession does notpertain to an act of disposition which the attachment forbids in that it is not a juristicact which directly produces a legal effect. Thirdly, expenditure done by a possessor in order to acquire the lien cannot be regarded as an act of disposition whichthe attachment forbids. The rationale of the Precedent has such theoretical weaknesses,and therefore it is hard to show consent to the dissenting opinion, which adheresto the Precedent. In the Decision, a majority opinion holds that the lienholders (defendants) canclaim their rights against the preexisting mortgagee or the successful bidder. The rationaleis that given that the attachment in disposition for arrears, unlike the attachmentin auction, does not directly connect to actual commencement of the auctionprocedure, the attachment itself in disposition for arrears cannot invalidate the rightof the lienholders. It is noticeable that the majority opinion rendered its conclusionregarding the effect of the lien not grounded on the rationale of the Precedent butgrounded on the fact that defendants acquired the lien in a situation where the auctionprocedure did not actually commence. Such a noteworthy change can be interpretedas changing precedent in an implicit way, which deserves to be appraisedas a reasonable and appropriate change. The majority opinion also holds that if the lien is acquired after auction proceduredid actually commence, the lienholder cannot claim his/her right against the preexistingmortgagee or the successful bidder. However, the majority opinion did not clarifythe legal ground for limiting the right of the lienholder, which is likely to becriticizable. I proposed that the principle of abuse of a right should be the legalground for restricting the right of the lienholder. In other words, in a situation wherethe exercise of the lien can lead to the significant infringement on the legal stabilityin an auction procedure, the exercise of the lien should be forbidden because suchan exercise of the lien should not be allowed under the principle of abuse of a right. The Decision can be considered meaningful since it can function as a turningpoint where the Court can renounce the problematic Precedent and declare the newrationale which utilizes the principle of abuse for limiting the lien. I hope that theCourt will consistently rule on the right of the lienholder by standing firmly on theprinciple of abuse of a right after the Decision.