假裝留置權의 進入制限을 위한 立法的 考察

• 영문명: A Study on the Legislative System for restriction of the Pretense Lien
• 발행기관: 한국민사법학회
• 저자명: 秋信英(Choo, Sin-Young)
• 간행물 정보: 『민사법학』제44호, 351~383쪽, 전체 33쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2009.03.31

영문 초록

A lien having a right of retention may sell the property retained at auction in satisfaction of his claim. Real estate lien is not become public announcement, so there are many problems in the auction procedure. A debtor and builder inflated the cost of lien and mortgage bonds. This paper is described with the point at issue for restriction of the pretense lien. First, attached real estate can not sell to others person, but three persons are assert that one s lien in the attached real estate. A commonly accepted theory recognized the theory of recognition on opposing power, that lien can resist to garnisher or purchaser. I think that defective public announcement of lien are having not powerful opposing power. A commonly accepted theory insist that the character on public good by mortgage bond of sum. However, mortgage bond by lien in auction practice is a large amount, also receipts and statement of accounts are unbelieve papers. Second, lien on the later mortgage registration become a many of problem in the auction procedure. A commonly accepted theory recognized the theory of recognition on opposing power. This theory recognized the superiority of lien than mortgage right. I think that defective public announcement of lien break down the system of mortgage rights law on the publish principle. Third, civil execution law did not prescribe that the application of allotment on lien. A commonly accepted theory deny that the application of allotment on lien, because this is formal auction. But, I think that lien has the mortgage bonds as well as other mortgage rights. That is, Lien has not only mortgage bonds but also be satisfaction of credit. Fourth, the execution court must introduce the restricted extinction principle in the lien auction procedure. The procedure of auction for sale of mortgage is as well as procedure of auction by lien. So that must introduce the restricted extinction principle. Fifth, the construction expense of builder for remodeling is object of lien. So, Building owner and builder inflated the construction expense. Specially, builder presented that pretense receipts and statement of accounts through auction procedure. I insist on take possession of execution title by builder.

목차

Ⅰ. 序論

Ⅱ. 留置權의 起源과 立法例

Ⅲ. 留置權과 競賣

Ⅳ. 競賣節次上 假裝留置權의 進入制限을 위한 檢討

Ⅴ. 結論

참고문헌

키워드

가장유치권 경매절차 피담보채권 압류부동산 저당권설정등기 대항력 인정설 경매신청인 매수인 경매실무 배당신청 집행법원 제한적 소멸주의 집행권원 형식적 경매 pretense lien auction procedure mortgage bonds attached real estate mortgage registration theory of recognition on opposing power garnisher purchaser auction practice application of allotment execution court restricted extinction principle execution title formal auction