유치권의 성립요건과 관련한 법적 문제

Abstract

A lien was initially developed from the right of 'exceptio doli' according to Roman Law to realize the fáirness dòctrine between two parties as a legal right granted by a way of security in the case where a person who occupies another's possession can refuse the right to return it until he/she is fully reimbursed for the bonds that they are entitled to related to the possession that they hold. Article 320 (1) of the Korean Civil Code that defines lien as one of the statutory real right granted by way of security requires expresses the connection-relation between a establishment as a claim arising with respect claim and subject matter applicable as an essential condition to determine its a thing or marketable securities and it leaves the issue of what claim would be applicable to the secured claim of the lien for the academic treaties and cases to cause conflicting opinions. When the person that possess does real estate has the credit that occurred about the real estate, the real estate lien forces repayment of the actually cover security credit as collateral security which can detain you until repayment receives the credit. Take the principle of undertaking that repays credit secured in line again in buyer of the actually real estate auction in 5 91 Clause of Article of the Civil Execution Act; there is it, but there is not report duty of line in real estate auction procedure. Therefore, buyer is the fact that cannot but collide with a lienor consisting of only the possession without the registration each other because the lienor does not say the formation right or wrong of the lien to the person who is going to do. The civil law takes the situation protecting the cover security credit of the lien to break a principle of the creditor equality by constituting a lien in legal right of the mortgagee relative to the credit of other creditors again; there is it. I explained about the main contents of Lien System and dealt with the important contents of Lien System and suggested especially the problems and improvements in connection with Essential Condition in Lien System.