채권담보거래의 이론적 변화와 전망 - 동산 · 채권 등의 담보에 관한 법률의 시행을 앞두고 - (An Analysis of the Reformation of Secured Transactions Law in Korea - A Shift in Theory and Prospects for Secured Transactions -)

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 56권 / 123 ~ 162페이지
· 저자명 : 정소민

초록

The Act on Security over Movable Property, Receivables, etc. (the “Act”) was enacted in 2010 to reform secured transactions in Korea. The Act will introduce a registration system for security interests in movables which is apparently similar to the filing system under UCC Article 9. The Act was inspired by the success of the filing system under UCC Article 9as well as model secured transactions laws such as UNCITRAL Legislative Guide on Secured Transactions and EBRD Model Law on Secured Transactions Law.
A closer examination of the Act, however, reveals certain limitations on reformation of the secured transactions: The Act adopted a traditional registration system rather than a notice filing system and the first in time,first in right principle in terms of priorities among secured creditors. This is because the drafters of the Act intended to affect the general rules provided by the Civil Code as little as possible. In this regard, the Act fails to enhance efficiency of secured transactions to the maximum extent.
Nevertheless, the reformation of secured transactions made by the Act is expected to bring positive changes in secured transactions in Korea: first,it will facilitate small and medium-sized companies' secured transactions using movables and receivables as securities. second, securitization transactions of future receivables will increase in number since the Act clearly allows use of future receivables as security. third, it will bring a change in appraisal practice. Current appraisal practice attaches great importance to the liquidation value of the secured asset, but cash flow produced by the debtor will become critical as future receivables-based lending becomes more common.
Enactment of the Act is the meaningful first step in reformation of the secured transactions in Korea. Some of the issues mentioned above are still unresolved, but the true reform of law takes place gradually, with changes in practice preceding or following the former. Therefore, reform of the secured transactions must be continued to establish an efficient security system which is in harmony with general principles of the Civil Code and balances between secured and unsecured creditors.

영어초록

The Act on Security over Movable Property, Receivables, etc. (the “Act”) was enacted in 2010 to reform secured transactions in Korea. The Act will introduce a registration system for security interests in movables which is apparently similar to the filing system under UCC Article 9. The Act was inspired by the success of the filing system under UCC Article 9as well as model secured transactions laws such as UNCITRAL Legislative Guide on Secured Transactions and EBRD Model Law on Secured Transactions Law.
A closer examination of the Act, however, reveals certain limitations on reformation of the secured transactions: The Act adopted a traditional registration system rather than a notice filing system and the first in time,first in right principle in terms of priorities among secured creditors. This is because the drafters of the Act intended to affect the general rules provided by the Civil Code as little as possible. In this regard, the Act fails to enhance efficiency of secured transactions to the maximum extent.
Nevertheless, the reformation of secured transactions made by the Act is expected to bring positive changes in secured transactions in Korea: first,it will facilitate small and medium-sized companies' secured transactions using movables and receivables as securities. second, securitization transactions of future receivables will increase in number since the Act clearly allows use of future receivables as security. third, it will bring a change in appraisal practice. Current appraisal practice attaches great importance to the liquidation value of the secured asset, but cash flow produced by the debtor will become critical as future receivables-based lending becomes more common.
Enactment of the Act is the meaningful first step in reformation of the secured transactions in Korea. Some of the issues mentioned above are still unresolved, but the true reform of law takes place gradually, with changes in practice preceding or following the former. Therefore, reform of the secured transactions must be continued to establish an efficient security system which is in harmony with general principles of the Civil Code and balances between secured and unsecured creditors.

참고자료

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