건축계약상 수급인의 유치권 제한

• 영문명: A Restriction on Right of Retention of Contractor over Building Contract
• 발행기관: 한국민사법학회
• 저자명: 박진근(Park, Jin-Keun)
• 간행물 정보: 『민사법학』제39-1호, 317~343쪽, 전체 27쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2007.12.31

영문 초록

If a contractor goes into bankruptcy while a contract-caker is building a structure by contracts of completion works, then a contract-caker has the right to assert his lien on the structure, and, if necessary, he can also assert his lien on the estates. This is because the money collected from the auctioned structure may not be able to cover all the construction costs. In this case, the lien for the estate is on the line of “a lien of commercial Law , not “a lien of Civil Law. This is because an estate doesn t come into being a lien of Civil Law. Moreover, a lien of commercial Law can increase infinitely on the ground or the existence without connection between the object and an obligatory right. Therefore, the gain and loss between a mortgagee and a lien person would run counter to each other. It stands to reason that an ahead real right takes precedence of a later real right as a general principles of the Law of reality. However, if a lien of commercial Law comes into being, it goes against general principles of a Civil Law, and a later lien may be in defiance of a former mortgagee. For this reason, it is reasonable that a lien of commercial Law needs to be restricted. To prevent this unreasonable problem from occurring, we must negate Contract-Caker s lien of commercial Law about an estates. However, a lien of commercial Law comes into being, we must put a construction that a former mortgagee take preference of a later lien.

목차

Ⅰ. 들어가며

Ⅱ. 대지에 대한 유치권의 성립여부

Ⅲ. 상사유치권의 제한

Ⅳ. 우리 판례의 태도

Ⅴ. 마치며

키워드

a lien of Commercial Law a lien of Civil Law the Contractor the Contract-Caker Contracts of completion works Auction