부동산 유치권에 관한 민법개정안의 검토

Abstract

We are to review whether the civil law amendment of amending the current civil law that defines the right to retention for the immovable property as a means to realize the bonds of a creditor who invested the value in immovable property and changing it to security real right through the right to demand mortgage and the establishment registration is reasonable from the perspective of law theory and interested parties with profits on the property. We are to also organize the problem on the right to retention of immovable property of the current civil law that served as a momentum of civil law amendment on the right to retention and individually review and evaluate the amendment purpose and specific legal provisions of civil law amendment. If recognizing the right to demand mortgage based on the legal nature of the right to demand mortgage defined in civil law amendment, effectiveness of the right to demand mortgage due to joint application regarding mortgagor registration and bonds whose maturity date does not arrive yet, we should discuss the specification of secured claim and the amount determination, protection of creditors arising because the right to demand mortgage cannot be exercised against a third party who acquired the ownership of immovable property after the right to demand mortgage has been established regardless of the good·ill will and conflict with Article 108, Article 406 etc. According to Article 369 Clause 2 of Amendment, with regard to the right to demand the registration of mortgage, the owner of a retained article may dispute secured claim with the lawsuit of mortgagor registration but the problem is that it should go back to the previous right to retention to determine the presence or absence and scope because it is a bond pledged as the right to retention so far. Unlike the right to demand mortgage of Article 369 Clause 2 of Amendment, the right to demand mortgage of Article 369 Clause 3 of Amendment not premising the right to retention should be called pure bond claim in its essence. If the opinion of regarding the right to demand mortgage as bond claim is fulfilled, the registered mortgage should be right tolienagreement established through agreement of real right and registration. In particular, unlike the right to demand mortgage of Article 369 Clause 2 of Amendment exercised as the lawsuit, the effectiveness of the right to demand mortgage of Article 369 Clause 3 of Amendment becomes a problem if the owner of immovable property does not cooperate in the registration application. If the mortgage is the mortgage bond, the mortgage should be established without registration but the mortgage of Article 369 Clause 2 of Amendment is similar to right tolienagreement because it is set by the registration by joint application principle and agreement between a mortgagor and mortgagee. Article 369 Clause 3 Sub-clause 1 of Amendment specifies the other party of the right to demand mortgage as “immovable property owner” not debtor. If a third party acquired ownership of immovable property after the right to demand mortgage was established, the exercise of the right to demand mortgage is excluded without asking his good·ill will. However, if an immovable property owner did not cooperate in establishment of mortgage and sold the immovable property to a third party even if knowing the lack of the common mortgage of creditors, the provision of Article 369-3 Clause 1 of Amendment uniformly denying the right to demand mortgage does not seem preferable in terms of the faithful protection of creditors. If a third party has ill will, it may be canceled as the deceptive act of Article 406 of civil law or false representation of Article 108 of civil law even if not directly known Article 369 Clause 3. As shown above, Article 369 Clause 3 of Amendment that Article 108 or Article 406 protects even a third party’s ill will denying protection may be imbalanced legislation. If an immovable property owner does not cooperate in establishment of mortgage, the right to demand mortgage adopted by civil law amendment has the problem of joint application principle as it is. Because mortgage can not be registered without his cooperation. Of course, the cooperative obligation corresponds to the right to demand mortgage and this can be appealed, enforced and even preservation by the injunction is possible. This is a common feature for all bonds. However, in the case of the right to demand mortgage recognized as extension of right to retention of immovable property, more efficient and effective measures for protecting creditors should be taken. Because if right tolienagreement could be acquired from the beginning, disputes concerning the right to retention would have not occurred.