Civil Law Clause 1, Article 320 of a lien stipulates that "if a person in possession of another person's article or securities is in possession of a bond related to the article or securities, he or she has the right to exercise the right of all lien until he or she is repaid for his or her receivables in possession." However, many cases abusing the Civil Act occurred recently, resulting financial institutions from avoiding PF loans and commercial building loans and good consumers damaging both tangibly and intangibly.
Also, financial institutions are suffering damages from the delay of auctions and the decreasing of bidding prices due to excercise of counterfeit or disguising lienholders. The court, accountable for compulsory execution, is also problematic because it has yet to establish accurate guidelines.
Therefore, there call for a change in the awareness of lien concerning real estate auctions and systematic complementation. The author has selected this issue to research into and understand the problems of lien and possible measures and to provide measures for improvements and directions for development to strengthen the rationality of the auction system and accelerate the cycle of the national economy.
The research area and content are as follows: first of all, the definition of realestate auction and its type and procedure; next, legal characteristics including the legality of lien, realright, real rights granted by way of security and 5 prerequisites of lien; third, investigation into Supreme Court's cases related to lien; and last but not least, a relationship between a lienholder and the person concerned, that between a purchaser and a lienholder, and that between alienholder and real estate property to be sold. The following problems of lien in real estate auctions have been drawn out by comprehensively reviewing the realestate auction system, lien's legal characteristics and prerequisites, effects of lien on real estate auction and so on.
The problems of real estate procedures are: first, the disadvantage of the lien's abernahmeprinzip; second, lack of the lienholder's public auction's validity; third, incompleteness of lien's right-reporting procedures; fourth, the formality of field studies and disapproval of public confidence as witnessed in the Supreme Court's disapproval of a disposed article statement; fifth, the inappropriate reflection of a review concerning the reporting of lien on auction realestate; sixth, lack of priority repayment right despite lien's status as real rights granted by way of security; and seventh, various ills including the disabuse of lien, such as counterfeit lien and disguising lien.
What is more, the problem of lien by nature is that occupation in cases refers to, "a situation when an article is believed to be in the possession of the person concerned by social norms,"and that"is believed to be in the possession," does not mean "not necessarily the physical or practical possession of the article, but must be judged based on the applicable law considering a time and spacial relationship between the article and the person concerned, a relationship concerning possessory right, and possible exclusion of third-party possession. "In this vein, problems of lien have been found in that the method for lien approved by the cases is very abstract while the need to hold lien and limitations of the lienholder's use of articles in possession become problematic.
By reviewing many problems of the current real estate auction procedures, the author has provided the following proposals for improvement: First of all, real state lien must be legally mortgaged and a order in terms of real rights granted by way of security must be established by introducing a correctional system regarding the existence of lien reported to the execution court.
Second, it is appropriate for an executor to conduct a field study and thoroughly investigate the possession of the real estate auction in the appraisal and assessment phrase and post the results before the first sales day, but investigation is to experience difficulty due to possible conspiracy between the debtor and lienholder.
Third, an article statement must be disclosed to learn of the uncertain items of lien in a disposed article statement.
Fourth, to solve the delay of dispossession, a lienholder who reports later than a certain date must be dispossed of auction real estate according to an order to deliver up and special rules or articles must be established through which the lienholder may file a relevant lawsuit.
Fifth, to prevent from counterfeit lien and disabuse of lien report, some amount of money may be deposited for each lien report and the amount may be distributed to the purchaser when the report appears to be counterfeit.
Sixth, a lien-related case must be facilitate by nurturing professional real estate auction judges specially equipped with expertise in construction.
Seventh, lien-related problems may be solved by allowing the purchaser to claim ill-gotten gains and damages in real estate auction.