• The Journal of the Korea Contents Association
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• v.14 no.8
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• pp.466-475
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• 2014

According to the Housing Lease Protection Act, even though it is not registered, if the lessee has completed delivery of a house and the resident registration, the lease shall take effect against the third person from the following day thereof. Any lessee who has met the requirements for opposing power and obtained the fixed date on the lease contract document, shall be entitled to receive the repayment of the deposit from the converted price of the leased house, in preference to any junior obligors and other creditors, at the time of an auction as provided by the Civil Execution Act and a public sale as prescribed by the National Tax Collection Act. The lessee shall be entitled to receive a repayment of a specified amount of the deposit in preference to other persons having the security rights in the leased house. However those provisions give rise to many problems because the Housing Lease Protection Act allows the opposing power and the right of preferential payment from the following date of fulfillment of the requirement. For the purpose of solving the problems, this study suggests that the Housing Lease Protection Act need to be amended as follows. The fixed date should be added to the requirement of opposing power and the preferential right of specified deposit repayment. In addition, the commencement of opposing power and preferential right of deposit repayment need to be taken effect from the day that the requirement is fulfilled.

• Journal of Legislation Research
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• no.41
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• pp.261-302
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• 2011

A lien is the right to possession the thing until receiving repayment of its bonds in some cases that the property of other person or the occupant for marketable securities receive the bond that has occurred on that property or marketable securities. This has own purpose to break 'principle of creditor equality' to protect especially the bond of the subject occupant in terms of justice. These lien on our civil law come according to the law in prepared certain requirements. However, an incomplete real rights granted by way of security that does not have a preferential performance right or seniority on the exchange value of the object suffer from the problems a lot in the real estate auction process because of the feature that is not announced in the register unlike the mortgage. In addition, the lien of real estate is not lapsed in an auction process. There is no preferential performance righ in a positive law as providing that can oppose to the buyer(a successful bidder) until received repayment the secured bond price to be compliant with the lien(Civil Case Execution Law the 91st clause of Article 5). However, as asserted the super preferential performance righ to a buyer in real terms, acts as primary cause of breaking unexpected loss and according unfair law relation to a senior mortgagee and seizor, etc. and the principles of the creditors equality to the persons concerned in other words, the principles of justice. All of these issues are the establishment of the lien and theory conflict on the effects. In spite of the fluctuations of a real right about real estate is announced as a registration by the current law, only the lien come into unclear announcement means for possession. In addition, Civil Case Execution Law argument is caused by the adoption abernahmeprinzip about the lien (Civil Case Execution Law the 91st clause of Article 5). Therefore, this paper was examined briefly the significance and purpose, history and law-making examples of each country and the valid requirements and effect of the lien that is basic principle of law about the lien system above all. And then, it will be reviewed the improvement plan for de lege ferenda to improve the issues about this after reviewing the objection, theory and judicial precedent about opposing power and preferential performance right of the lien in the real estaKey Words : Lien, Oppose Power, Mortgage right, Preferential Performance right, Seizure, Real Estate Auction, Lien who can not Opposing against Successful Bidder, Lien who can Oppose against Successful Bidder, Possessionte auction that is a fundamental problem on requirement and effect of the lien.