유치권자의 유치물의 무단임대행위와 민법 제324조 제3항 소정의 유치권 소멸청구

초록

In the context of the discussion on the right to extinguish a lien, this article aims to clarify whether a third-party acquirer who acquires possession of a security interest after the termination of a lienholder’s unauthorized lease of the security interest to a third party without the debtor’s consent can file a lien extinguishment claim. To this end, this article conducts research in the following order and summarizes the results in brief. First, the article examines, on a case-by-case basis, whether a lienholder’s use, loan, or pledge of the collateral without the debtor’s consent falls within the lienholder’s duty of good faith or otherwise constitutes a use necessary for the preservation of the collateral. The article concludes that the affirmative theory and case law favor an elastic and broad interpretation of the scope of a use necessary for the preservation of the collateral. Next, as to whether a lienholder’s act of lending the security to a third party without the debtor’s consent (so-called “unauthorized leasing”) constitutes a use necessary for the preservation of the security, the author concludes that, in principle, the unauthorized leasing of the security should not be included in the scope of the use necessary for the preservation of the security. Second, I examined the discussion on the legal purpose of the lien extinguishment claim under Article 324(3) of the Civil Code. As a result, I concluded that the legal purpose of the lien extinguishment claim system under Article 324(3) of the Civil Code should be identified with the sanction theory as the main element or applied as a rule, and the risk theory should be identified with the secondary element or applied as an exception. Third, based on the results obtained from the first and second research projects, I divided the issue in this article, which is whether a third-party acquirer who acquires ownership of a lien after the lienor’s unauthorized lease of the lien to a third party without the debtor's consent terminates, into two types of cases: cases in which the lienor’s breach of the duty of care continues after the change of owner and cases in which the lienor's breach of the duty of care ends before the change of owner. As a result, I concluded that if a lienholder breaches its duty of care while the debtor is the owner of the security interest and the breach continues despite the change of owner, both the deterrence theory and the risk theory apply, and the new owner can claim extinguishment of the lien against the lienholder. In addition, if the lienholder's breach of the duty of care ended before the new owner of the security interest acquired ownership of the security interest, the new owner could, in principle, acquire the right to extinguish the lien against the lienholder under the sanction theory, and the cause of the new owner’s acquisition of the right was interpreted as ‘succession acquisition’. However, when there is no longer a realistic risk of damage to the new owner after the lienholder’s breach of the duty of care has ended, the court applied the risk theory as an exception and determined that the new owner cannot acquire the right to extinguish the lien of the old owner’s lienholder that has already been established. In order to elaborate the theory, it was necessary to refer to the German discussion on the transfer of formation rights.

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