부동산의 선순위 근저당권과 상사유치권의 우열관계

Abstract

This research is about establishing range and validity of commercial lien. There are many conflicts in claim of requesting rights relating to financial institution’s business, real estate auction, subcontract relationships. The commercial lien does not have preferential payment right, however, the lien is effective in rights of occupation, so the creditor is able to secure the bond preferentially than other creditors. This Supreme court’s case is about a landowner who set the right to collateral security to financial institution first, and then made a contract with builder in order to build a building on that land, but if supplier can wield the commercial lien on authority of cost of construction bond. Nowadays, in case of large scale commercial building construction, both contractor and contractee in the construction contracts are mostly tradesman, and construction price bonds are caused by bilateral commercial activities. Therefore, construction contractor will be seeking to protect their rights by claiming a commercial lien. But, mortgagee, who loaned and was made settlement of mortgage on hide ground, may suffer violation of rights. Thus, there is need to limit establishing range and the validity of commercial lien. However, I doubt whether it is reasonable to limit the establishing range of commercial range through the supreme court judgement without legislative complementary. Because it can be interpreted arbitrarily beyond the meaning of the legal text’s language. Thus, It is reasonable that the problem of commercial lien should be resolved by adopting new regulation about the establishing range of commercial lien.