부동산경매에서 유치권신고의 의무화

Abstract

As a real estate lien is the legally secured real right that we can detain other's object under our occupation until the secured credit occurring from the object itself is redeemed, it would compel the repayment of liabilities(the paragraph 1 of the Article 320. the Civil Law). Therefore the paragraph 5 of the article 91. Act of Civil Affairs Execution Law requests defacto compulsory redemption from a buyer in auction house for secured credit of a lien. But it is not an obligation to report a lien in an auction process, and the authenticity of the lien is not open to all the people. Moreover, because such a real estate lien is established only by occupation without any registration apart from other prior property rights by being publicly announced at the register, there is high possibility of conflict between a real estate lien and other prior property rights. In case a debtor and a lienor are in collusion each other and report false or overstated liens by abusing the above-mentioned condition, such a false report can cause a lower bidding price, and so other creditors with higher priorities have loss due to the reduction of allotted fund, and the buyer is unstable because of the false or overstated lien. This study has investigated a couple of issues related to the establishment and validity of a real estate lien, and the adverse effects of illicit activations of a lien in the auction process through precedents, theories and actual affairs. From the investigation results, the improvement of a lien system is suggested. The real estate lien should be made to report the rights by free proof till the closing period of demanding dividend in the auction procedure of real estate so that a buyer may redeem only the secured credit by the above lien reported by proof. This study suggested to amend the Acts of Civil Affairs Execution Law to by making it obligatory to report the lien, through the synthetic consideration of all the relevant issues. As a result, the current lien system based on the principle of fairness is unilaterally advantageous only to a lienor and thereby causes another issue of unfairness by infringing interests of a prior ordered creditor or a buyer. Therefore the lien system should be improved so as to be fair not only with lienor but also with creditor, debtor, owner, buyer and all persons interested.