채권담보의 현황과 과제 - ‘동산⋅채권 등의 담보에 관한 법률’의 시행에 즈음하여 - (Current situation and issues of security over receivables)

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 61권 / 37 ~ 84페이지
· 저자명 : 김현진

초록

The Act on Security over Movable Property, Receivables, etc.
(hereinafter the “Act”) has established a new contractual security right in property with security interest over movable property and security interest over receivables, and has introduced a security registration system. The establishment of a new security over receivables equipped with a means of public disclosure by registration of security interest is ground-breaking for Korean secured transactions and gave birth to the modernization of receivables security legislation.
Publicity and third-party effectiveness of the security interest over receivables through security registration make the following points possible:(i) receivables arising in the future from unspecified debtors as well as collective receivables may be the object for security interest; (ii) the security interest provider may create a subordinated security interest over the same receivables, where in such case the registration of security is used as the standard to determine the priority rather than the reversion of the receivables; and (iii) the function of the notification to the debtor of the receivable(hereinafter the “third party debtor”) or his consent is reduced and limited to that of criteria for perfection against such third party debtor.
However, this does not conform to the receivables assignment publicity system of the Korean Civil Code in which the information as to the reversion of the receivables or the creation of the security interest through notification or consent is concentrated on the third party debtor and publicity is made through investigation by the third party debtor. This nonconformance raises new issues surrounding the relationship between the security registration and the notification or consent of creation of security interest.
For instance, let’s say that security interest provider, Party A, creates a security interest over its receivables against Party B in favor of Party C and Party D in order of priority, registered and perfected each of the same against third parties on the registration date. If the notice of creation of the security interest is delivered to Party B in the order of Party D and then Party C there is no clear provision as to who Party B must repay in order to be exempted from liability. To sum up the provisions in the Act, we must interpret that the priority against third parties and exemption against third party debtors are distinguished.
Including this dilemma above mentioned, there are several problems to be solved in enforcing this Act. So I pointed out these problems, and tried to propose some solutions in this paper.

영어초록

The Act on Security over Movable Property, Receivables, etc.
(hereinafter the “Act”) has established a new contractual security right in property with security interest over movable property and security interest over receivables, and has introduced a security registration system. The establishment of a new security over receivables equipped with a means of public disclosure by registration of security interest is ground-breaking for Korean secured transactions and gave birth to the modernization of receivables security legislation.
Publicity and third-party effectiveness of the security interest over receivables through security registration make the following points possible:(i) receivables arising in the future from unspecified debtors as well as collective receivables may be the object for security interest; (ii) the security interest provider may create a subordinated security interest over the same receivables, where in such case the registration of security is used as the standard to determine the priority rather than the reversion of the receivables; and (iii) the function of the notification to the debtor of the receivable(hereinafter the “third party debtor”) or his consent is reduced and limited to that of criteria for perfection against such third party debtor.
However, this does not conform to the receivables assignment publicity system of the Korean Civil Code in which the information as to the reversion of the receivables or the creation of the security interest through notification or consent is concentrated on the third party debtor and publicity is made through investigation by the third party debtor. This nonconformance raises new issues surrounding the relationship between the security registration and the notification or consent of creation of security interest.
For instance, let’s say that security interest provider, Party A, creates a security interest over its receivables against Party B in favor of Party C and Party D in order of priority, registered and perfected each of the same against third parties on the registration date. If the notice of creation of the security interest is delivered to Party B in the order of Party D and then Party C there is no clear provision as to who Party B must repay in order to be exempted from liability. To sum up the provisions in the Act, we must interpret that the priority against third parties and exemption against third party debtors are distinguished.
Including this dilemma above mentioned, there are several problems to be solved in enforcing this Act. So I pointed out these problems, and tried to propose some solutions in this paper.

참고자료

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