건축부지에 대한 건축수급인의 상사유치권 성립 여부 - 대법원 2008.5.30.자 2007마98결정 및 2008.12.24. 선고 2007다52706, 52713 판결에 관한 평석 -

Abstract

The possible exercise of a civil lien on the premises or on the building itself has been discussed as a legal device for the protection of a building contractor's right to be paid for construction expenditure. This option for the contractor implicates several legal problems, however. The biggest obstacle is that a civil lien on the premises cannot be established mainly because the sufficient relationship between the premises and the payment, as one of the requirement of an effective civil lien, does not exist. As an alternative solution to this legal problem, some of the scholars discuss the establishment of a possible commercial lien on the premises pursuant to Article 58 of the Commercial Code, but the legal profession is split on it. The Korean Supreme Court is of the view that a contractor's commercial lien on the premises cannot be effective simply because his or her possession is not considered as "possession based on commercial activity" as Article 58 of the Commercial Code requires. However, such a negative view is not flawless, since a building contractor's possession can possibly be considered as possession based on commercial activity. Thus his or her commercial lien on the premises should be recognized as an effective legal guarantee for the payment. The only legal problem is the possible conflict between mortgage rights and the commercial lien. In such a case, the protection of mortgage rights should be the priority provided that mortgage rights were established first. This interpretation is the most reasonable one that harmonizes conflicts of interest between the opposing parties. The author expects this article to facilitate further academic discussion, among the legal profession, on the possible establishment of a contractor's commercial lien on the premises.