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A study on improvement measures according to problems related to lien in real estate auction. - With the execution court, prospective buyers, and lien holders at the center -

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2022, 10(2), pp.271-302
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : March 24, 2022
  • Accepted : May 29, 2022
  • Published : May 31, 2022

Cho Jae Jin 1,  Kim, Sang-Jin 1

1세명대학교

Accredited

ABSTRACT

In real estate auctions, a problem arises according to the requirements for the establishment of a lien. It is difficult to fully protect bonds due to the instability of occupation, which is the core of lien rights. Occupation in lien is a prerequisite for establishment and at the same time as a condition of existence, the creditor must maintain possession through direct or indirect possession until the repayment of the claim. This is a blind spot in claiming a lien, and it is difficult to sustain it, and the issue of false lien arises when the form of possession itself is disclosed as a method of disclosure. Currently, the process of examining the physical information of an auction item through a current situation investigation in the court is only a simple confirmation procedure. The indication of confirmation of whether a lien is established is seen as an avoidance phenomenon due to uncertainty in real estate auctions. This phenomenon of avoidance of lien lies in the adoption of the buyer's takeover principle by refusal of delivery, which is a strong effect for securing the bond of the lien. In a real estate auction, the right to be taken over by the buyer. If the establishment of a lien is clearly established, the purchaser will also plan a bid in consideration of the amount of collateralized receivables, thereby preventing damage due to underwritingism. In other words, making possession as a condition for establishment and existence causes instability of liens, and these blind spots lead to delays in auctions due to false liens, delays in lawsuits, reckless false lien claims, decline in sale price, and uncertainty in securing bonds. If the precedent for the absence of a lien is confirmed with a false lien, in most cases the lien is denied on the basis of the inadequacy of the conditions for the establishment of the lien. A false lien claim in the form of good or bad if you file a lawsuit and win has a fatal side effect on a sound real estate auction. These are the case of maliciously blocking the sale due to the auction by claiming the lien unconditionally regardless of the facts, and the case of obstructing the auction by claiming excessive collateral claims. By reorganizing the true purpose of the lien by fundamentally solving the problem of derivation of the lien and preventing the infringement of other bonds set in the auction due to the false lien, those involved in the real estate auction must provide clear information about the lien and whether it is established or not. There is an urgent need to establish a standard that can be grasped. Therefore, this study analyzes the lien issue that occurs in real estate auctions and provides a powerful means to display factual information externally by clarifying the establishment of lien, thereby blocking problems arising from the standpoint of the enforcement court, purchaser, and lien holder. We intend to present an improvement plan for the eradication of false liens while promoting practical benefits.

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