부동산 유치권 관련 개정안에 대한 몇 가지 제언- 2013년 민법 일부개정법률안을 중심으로 -

Abstract

The method of publication on the Current right to retention of Immovable Property is possession unlike the another legal rights to real estate of mortgage having the registration as a method of publication. Therefore, Current right to retention of immovable property has been causing some problems that have not coincide with the system of real estate registry. Because of this, some alternatives for the current right to retention of immovable property have been discussed on the revision of Civil Law related to the rights. The Civil Law Amendment Commission is getting to work the amendment of the Civil Law and making a draft. The Bill on right to retention of immovable property was already submitting and pending in the National Assembly. According to Bill of the Civil Law Amendment regarding Right to Retention of Immovable property, Major issues are abolishing the right of retention on real estate in principle, exceptionally admitting the right of retention on unregistered real estate, establishing both the system of right to demand establishing hypothec and the right to retention of unregistered real estate within certain period, adopting principle of extinction under the process of auction in place of abandoning the principle of takeover. However abolishing the right to retention on real estate of immovable property is inadequate because it disregard that there are lots of legal dispute regarding architect construction fees. And extinguishing right to retention on the real estate and right to retention on unregistered real estate is not proper because of conflicting with the principle of appendant nature of security real right. Moreover it is improper to acknowledge right to demand establishing hypothec as regards claim to recover damages resulted from objects because it is likely to conflict with structure liability under Article 758 of Civil Law. The things mentioned are unreasonable, but it is considered positively that the principle of extinction is adopted at the process of auction instead of adopting the principle of takeover.