유치권과 저당권의 경합

• 영문명: The competition of a lean and hypothec
• 발행기관: 한국민사법학회
• 저자명: 최명구(Choi, Myung Gu)
• 간행물 정보: 『민사법학』제42호, 709~742쪽, 전체 34쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2008.09.30

영문 초록

I study on the problems in case of competition of a lien and hypothec through the concrete examples - in case of a return claim of construction charge, nullity or retraction of a sales contract. In case of a return claim of construction charge, there are three problems whether or not to recognition a lien of covenantee competition of a lien and hypothec and limits of an obligatory right to be indebted mortgage. In case of competition of a lien and hypothec, a lien did not have a priority reimbursement right so that hypothec have priority a lien. Regarding to a lien, a vendee hold a position of trust to reimburse an obligatory right to give to pledge mortgage to a lienor. In case of an auction by a lien, a vendee takes charge of a lien in accordance with a principle of acceptance. The problem about recognition limits of an obligatory right to be indebted mortgage of a lien is connection between an obligatory right to be indebted mortgage and the object. A theory about that problem is devided a broad sense opinion and a narrow sense opinion. A leading case adopt a broad sense opinion. Regarding to a broad sense opinion, a mortgagee insist a priority reimbursement right only about real estate, a lienor can receive a priority reimbursement through a claim about a object in point of fact. In case of nullity or retraction of a sales contract, the problems are whether or not to recognition a lien of covenantee, competition of a lien and hypothec. A lien is present in case of recognizing relation of a real right work and choosing a broad sense opinion. A leading case also recognizes a lien of a vendee. In case of nullity or retraction of a sales contract, if a lien is recognized to a vendee, a lienor take a priority reimbursement right in point of fact by a principle of acceptance. And a mortgagee also take a priority reimbursement through to set up hypothec. In result the problem occurs about competition of both parties. In this case, the effect varies as the time that a lien and hypothec are each concluded. This case has a process - registration for hypothec institution → a sales contract → nullity or retraction of a sales contract. In result a vendee can not antagonize a successful bidder and a vendor alegar basis to come from a lien by a return claim about selling and buying price. For solving the competition between a lien and hypothec, first, a standard to solve the problem of connection diverts a principle of factor from a principle of effect, second, a registration system is must bring in for making public of a lien, third, to apply a principle of connection is must reappraised, lastly a lien must divide into two - the thing to have a priority reimbursement right and have not a priority reimbursement right. And if a principle of connection apply the former, a principle of extinction apply the latter, a valid conclusion can be drawn.

목차

Ⅰ. 들어가며

Ⅱ. 저당권과 유치권의 비교

Ⅲ. 유치권과 저당권의 경합과 문제점

Ⅳ. 향후 검토될 사항

Ⅴ. 맺으며

참고문헌

키워드

유치권 저당권 유치권과 저당권의 경합 인수주의 소멸주의 Lien Hypothec The competition of a lien and hypothec The principle of a acceptance The principle of a extinction