유치권에 의한 부동산경매에서 매각으로 인하여 목적부동산 위의 부담이 소멸하는지 여부와 법정매각조건 ― 대법원 2011. 6. 15.자 2010마1059 결정을 중심으로 ―

Abstract

A person having a right of retention may sell the retained article at an auction in satisfaction of his claim. There are arguments about the nature of the auction under the right of retention and whether encumbrances on the sold immovables shall be extinguished or not by such sale. Recently, the Supreme Court made a Decision on this matter for the first time. This Decision has important significance for the case declaring the extinction principle at auction under the right of retention. And This Decision may lead the execution of auction under the right of retention. According to Civil Execution Act, any auction under the right of retention shall be executed in conformity with the example of an auction to exercise the security right, so if there are no special reason to adopt take-over principle in the light of object, intent of auction and law, encumbrances on the sold immovables at auction under the right of retention shall be extinguished. So we consent the reason of this Decision concerning extinction principle. However, the reason of this Decision concerning the non-notification of the extinction of encumbrances on the sold immovables to owner, creditor and bidders does not prohibit the decision on a permit for sale does not coincide with the ideal of auction that is the adjustment of interests and the realization of appropriate conversion into money. From the point of legislature view, it is necessary to reconstruct the auction under the right of retention as for a realization of security right not for a mere conversion. In addition, a concrete regulation on the auction under the right of retention is demanded because of the shortage of rules in the current Civil Execution Act.