미국의 주법상의 건축공사 우선특권(Construction Lien)과 부동산 유치권의 비교법적 연구

• 영문명: A Comparative Analysis of Construction Liens under the US State Law and the Right of Retention of Immovable Property under the Korean Civil Code
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 이종구(Jong Goo Lee)
• 간행물 정보: 『비교사법』比較私法 제19권 제2호, 583~626쪽, 전체 44쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2012.05.31

영문 초록

Republic of Korea Civil Code § 320 (1) provides that if the possessor of a thing belonging to another person has any claim arising in respect to such property and if payment of the claim is due, he or she may retain possession of the thing until the claim is satisfied. This is called the right of retention which is very similar to concepts found in American possessory liens. Korean court decisions and scholarly opinions show that the property involved can include real property as well as personal property. Also, only possession of the real property is an essential requirement to perfect it. Thus, a possessory lien holder can retain the real property, subjected to his or her lien, until his or her claim is paid. For many years, however, numerous legal scholars have argued that, with respect to real property, a conflict with the Korean real estate recoding act exists; to perfect the acquisition of real rights concerning immovable properties, the acquisitor must register his or her rights. This conflict has compelled those scholars to prepare an Amendment Draft of the Korean possessory lien based on a comparative analysis of European law including German and French law. This paper introduces and comparatively analyzes American construction lien law within this context. Construction liens are created and governed by specific state statutes to provide additional payment protection to builders and suppliers who perform services related to real property improvement. Generally speaking, the majority of the states provide a protective umbrella to every person who takes part in real property construction or improvement. Under most state law the claimant must generally satisfy the three criteria to perfect his or her lien rights. First, he or she must have improved another person’s real property. Second, most states require that the potential lien claimant give a “notice to owner” prior to, or shortly after, the initial provision of goods or services. Third, most states require the claimant to record or file a construction lien claim or notice with a designated public office. Most states also have very strict time limitations. In many states, lien claimants hold a priority not from the time when the lien is recorded, but from the date of (visible) commencement of the improvement. American construction liens therefore greatly differ from Korean possessory liens where the claimant must record and file the lien to perfect his or her lien right. Recently, the Korean Civil Code Amendment Committee announced its Draft Proposal to amend the Korean possessory lien, with respect to real property. With respect to registered real property, the draft abolishes a current possessory lien system; that draft instead gives persons who have spent expenses on another person’s real property a right to demand that the property owner create a mortgage on the property on behalf of the claimant. Also, within 6 months from the date of payment due of the expenses, it requires the claimant to register it or to file suit to claim the registration of his or her mortgage against the property owner. Finally, the mortgage takes effect at the time that the claimant registers it, but where the payment due is from an earlier date, the mortgage takes effect on that earlier date. On the surface, the basic structures of the amendment draft and American construction liens are very similar, even though the draft is based on Article 666 of the Korean Civil Code. This paper is a comparative analysis of the evolution of lien law that offers considerations for, and recommendations to, the Korean Civil Code Amendment Committee regarding its Amendment Draft Proposal.

목차

Ⅰ. 서론

Ⅱ. 미국 주법상의 건축공사 우선특권(construction lien)

Ⅲ. 미국 주법상의 건축공사 우선특권과 민법상의 부동산 유치권의 비교

Ⅳ. 부동산 유치권 제도의 개정에 관한 약간의 제언

Ⅴ. 결론

〈참고문헌〉

〈Abstract〉

키워드

건설공사 우선특권 부동산 유치권 저당권설정등기청구권 코먼로 우선 특권 형평법상의 우선특권 construction lien mechanic’s lien possessory lien real property lien Korean Civil Code Amendment Committee