부동산 경매 압류･현금화･배당단계에서 유치권 개정안의 한계에 관한 검토

• 발행기관: 한국민사소송법학회
• 저자명: 이찬양
• 간행물 정보: 『민사소송』제24권 제2호, 197~256쪽, 전체 60쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2020.06.30

영문 초록

The key to the amendment is to abolish the lien and turn it into a mortgage. However, the amendment has problems such as absurdity in superiority of liens on foreclosure bonds and weakening of rights protection in the foreclosure stage of real estate auction. Also, in Real Estate Auction Cash Stage the issue with potential weakening of priority of legitimate creditors regarding preceding mortgagor claims and issues with confusion of priority due to the existence of three mortgagor claims were reviewed. In addition, in the dividend stage, it is expected that the lien holder s dividend will be inferior due to a claim by the false lien holder. Therefore, it is questionable whether the position of this amendment aiming to introduce a mortgage claim system through the abolition of the lien is entirely beneficial. Rather than allowing a mortgage to be established, it is appropriate to keep the lien as it is and to register the lien. In addition, in the case of applying the lien registration system, the application examples were presented at the seizure stage and the monetization stage of the real estate auction and the rationality was derived. This option may disclose liens that are not disclosed to the outside world. In addition, the existing Supreme Court case law, which has gained considerable support, can be implemented as it is, so it can be reasonable and ensure legal stability. In addition, it is more reasonable if preferential payment right are granted and principle of extinction is introduced. Amendments to abolish liens, the rights retained for more than 50 years, are also problematic in the procedural aspects of legislative practice. The legislation that abolished one right and transformed it into a new one has several problems. Above all, member of the National Assembly, who are legislators, are very difficult to approve of the amendment that opposes this. This is because the local district s public sentiment is divided in favor, and if wrong, a member of the National Assembly who voted for this revision could fail. The current amendment has been scrapped. However, it is expected that the proposed legislation will be submitted to the National Assembly with the abolition of liens and the transition to mortgage. However, the amendment to this content will be terminated for the same reason as the past. Therefore, considering the aspect of legislative practice, it is more appropriate to retain the lien that has been in effect for a long time than to abolish the lien. While maintaining liens, there are problems that can arise from liens. However, it is reasonable in terms of legal stability to judge and supplement these problems as operational problems of the lien system.

목차

Ⅰ. 서론

Ⅱ. 부동산 경매 압류단계에서 개정안의 한계

Ⅲ. 부동산 경매 현금화단계에서 개정안의 한계

Ⅳ. 부동산 경매 배당단계에서 개정안의 한계

Ⅴ. 유치권 존치를 위한 입법적 대안

Ⅵ. 결론

키워드

부동산 경매절차 강제집행 유치권 개정안 유치권의 대항력 가압류 압류 저당권,유치권등기제도 우선변제권 소멸주의 Real Estate Auction Process Compulsory Execution the Civil Law Amendment regarding Rien Rights Counterforce of the Lien Right Provisional Attachment Attachment Mortgagor claims a system of registration of right of retention or possessory lien preferential payment right principle of extinction