상사유치권(상법 제58조)의 성립요건

초록

Compared with article 320(Contents of Right of Retention) paragraph 1 of the Korean Civil Act, article 58(Mercantile Liens) of the Korean Commercial Act is different in two points: first, this requires no connexity between secured debt and a collateral; second, this only applies to things or securities(valuable instruments) belonging to the obligor. For those two articles that apply ipso iure and those rights thereupon are de facto so strong as to break the principle prior tempore potior iure, many critical comments have been raised long before from academia as well as business. In 2013, a reforming bill was prepared by the Ministry of Justice and submitted to the National Assembly, but to fail to be enacted for several reasons. In the meantime, courts have been developing precedents restricting mercantile liens over real property against a mortgagee of prior order in the foreclosure. This article criticizes the general understanding of mercantile liens as a shield protecting a creditor’s abuses and puts emphasis on a debtor’s intentional engagement in establishing a mercantile lien situation. From the new perspective, some current legal problems come to be reviewed one by one(Part Ⅲ). In the conclusion, supported are the recent trend of case law and the legislative proposal eliminating real property from the application of art. 58.

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