Review of Case Law Limiting the Opposing Power of Retention Right in Real Estate Auctions

The retention right holder has the right to refuse delivery to the buyer in the auction procedure. As part of resolving the problem of this situation, the Supreme Court has established the legal principle that liens established after the registration of the auction commencement decision cannot be used against the buyer in the auction process. However, in 2022, the Supreme Court made a ruling that is difficult to explain with these legal principles. This is because the opposing power of the lien was recognized even though the lien was not established at the time of registration of the auction commencement decision due to the postponement of the payment period. However, the 2022 Supreme Court ruling does not provide specific standards, but simply lists various circumstances that do not undermine the stability of the auction procedure even if the lien is recognized in the case. Therefore, it is not possible to know which of them is the decisive factor. In other words, this ruling is significant in that it demonstrates the need for change in the existing Supreme Court jurisprudence, but it has the limitation of failing to present specific standards to resolve this issue. In this paper, the following conclusions were presented regarding the standards for judging the opposing power of liens by comparing previous rulings with the 2022 ruling. (1) Limiting the opposing power of liens established by transfer of possession after registration of the auction commencement decision is an appropriate way to protect the interests of enforcing creditor. And this can be explained by the prohibition effect of attachment. (2) Even if a claim is established after registration of the auction commencement decision, it is necessary to deny the opposing power of the lien. This can be explained if the effect of attachment is broadly understood. (3) The fact that the payment period arrives after the registration of the auction commencement decision cannot be a factor to be considered when determining the adversarial power of the lien. (4) Whether or not a lien is listed in the status investigation report cannot be a decisive criterion for determining opposing power. However, in cases where it is necessary to protect the trust of buyers in the auction process who were unaware of the existence of a lien, opposing power must be determined by reviewing the lien holder's fault for the failure to include it in the status investigation report.