不動産競賣에 있어서 留置權을 둘러싼 制度 改善 -Lien Hold around System Improvement in Real Estate Auction
- Lien refers to a mortgage bind for which one who possesses other's objects or marketable securities can keep the possessions in custody in custody in order to assure delivery of resulting bond as a product from then. So, lien holder Has a legitimate stand-ing equivalent to having real preference repayment rights. this lien is accrued depending on associations between object and bond, and is made public by possessing the object. here, lien is realized in effect unless the possession is illegal.
Thus, in the sale of real estate auction process to analyze the value of liens on real estate sports a current law is very difficult. Because attracting the right of the owner because there is no obligation to report. Even bid on the lien holder of the rights won by the Enforcement was reported even reported that a large portion of the lien can not determine the legality of many cases that is the reality in practice.
Even if he declared his rights for the lien to competent court over lien holders, it is a matter of fact in practice that there afe many cases of unidentified legality across the considerable number of lien declared. If a lien holder who does neither declare his rights nor appear on field report prepared by official lien executor claims for certain lien during or after selling of real estate against auction entrants, creditor who applies for auction, preference creditor and more, there may be resulting questions such as legal disputes for the existence of lien, delayed progress of procedural auction, and even falsified buyers of real estate for auction.
The unexpected advent of lien holder may cause the mortgage bond to fail to meet its original purport of assuring bond liquidation.
The cause of these problems when it comes to the lien sale preparation phase is not clear that the existence of what can be. Due to these problems, any unexpected advent of lien holder may cause unwanted damages to legal auction applicants, buyers and more in the procedures of real estate auction. Real estate lien actually accounts for a considerable portion in Supreme Court's precedents associated with lien, and many cases of lines over-issued or abused for real estate sold.
Also Lien could not participate in the dividend. So rejected can be delivery of the lien. In this context, it is very pressing and significant to analyze the status of lien holder in the procedural enforcement of real estate auction to deduce resulting questions related to the status and seek possible ways to improve them.
This study intended to seek major three possible ways to improve the questions concerned with the standing of lien holder in terms of procedural enforcement of real estate auction. First, introduce A Lien Obligatory Reporting System of the Auction preparation step and through a thorough review of Supervisors, we need to develop execution court Existent or not Decision system of lien. Second, trying to including dividends to attract makers is to propose a how to plan, in step dividends to creditors.
This improvement through real estate auctions in the process attracting maker's position clear, and lien rights to the analysis, clearly if the real estate auction process in the conflict be prevented that, as well as efficient real estate auction system of settlement shall think.
- Issued Date
- Alternative Author(s)
- Kang, Chang-Bo
- 행정대학원 법학과
- Table Of Contents
- 第1章 序 論··················································1
第1節 硏究의 目的·································································1
第2節 硏究의 方法과 範圍························································3
第2章 不動産競賣와 留置權의 法理···························5
1. 부동산경매의 의의·······························································5
2. 부동산경매의 종류·······························································5
3. 부동산경매의 목적물····························································8
4. 부동산경매의 절차····························································10
第2節 留置權의 法理 ····························································19
1. 유치권의 의의와 법적 성질····················································19
2. 유치권의 성립요건······························································22
3. 유치권의 효력···································································29
4. 유치권의 소멸···································································36
第3節 不動産競賣에 있어서 留置權者의 對抗力······························37
1. 압류 후 유치권의 성립요건을 갖춘 경우 ·····································38
2. 가압류 후 유치권의 성립요건을 갖춘 경우 ··································41
3. 저당권 설정 후 유치권의 성립요건을 갖춘 경우 ····························42
第3章 不動産競賣에 있어서 留置權者의 地位··············46
第1節 競賣請求權者로서의 地位················································46
1. 유치권자의 경매청구권·······················································46
2. 유치권자가 신청한 경매의 성격···············································47
3. 경매청구권 행사시 민법 제322조 제2항의 유추적용·························50
第2節 利害關係人으로서의 地位················································51
1. 이해관계인의 범위와 권리·····················································52
2. 유치권자의 이해관계인 여부····················································54
第3節 賣却不動産을 留置․使用할 地位·······································57
1. 매각부동산을 유치할 지위·····················································57
2. 유치물 사용권의 인정여부·····················································59
第4節 配當要求權 및 費用償還請求權 등에 기한 地位······················59
2. 비용상환청구권에 기한 유치권자의 지위······································64
3. 손해배상청구권에 기한 유치권자의 지위······································65
4. 공사대금청구권에 기한 유치권자의 지위·······································66
第4章 不動産競賣에 있어서 留置權의 制度上 問題點과 改善方案···68
第1節 賣却準備段階에 있어서 留置權··········································68
1. 형식적 현황조사·································································68
2. 허위․과장된 유치권신고·······················································72
第2節 賣却段階에 있어서 留置權···············································80
1. 유치권의 존재여부 파악 곤란··················································80
第3節 配當段階에 있어서 留置權 ·············································85
1. 유치권자의 확인 여부 곤란···················································85
第4節 執行段階에 있어서 留置權···············································88
1. 관련 소송으로 인한 경매지연··················································88
2. 개선방안 ·······································································90
第5章 結 論···············································91
參 考 文 獻·······························································94
- 제주대학교 행정대학원
- 강창보. (2011). 不動産競賣에 있어서 留置權을 둘러싼 制度 改善 -Lien Hold around System Improvement in Real Estate Auction
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