부동산 프로젝트 금융(PF)과 담보 - 담보권을 중심으로 - (Real Estate Project Financing and Collateral)

서지정보

· 발행기관 : 한국사법학회
· 수록지 정보 : 비교사법 / 19권 / 2호 / 405 ~ 458페이지
· 저자명 : 김병두

초록

Real estate project financing appears to be depending more upon contractor’s unconventional mode rather than conventional project financing. Looking around the world, not only this type of project financing is not put in practice except Korea,but also this type, definition or expression is neither recognized or nor understood.
Even in USA where project financing began in the earliest age, only collateral based loan exists as a real estate development financing. Of course it is totally up the project owner with his free decision and determination whether to finance his/her real estate project using available collateral. The past experience with certainty of collection/recovery of loan by continuous increase in real estate’s value may not be ignored. Also here, real estate policy that right of primary banks is treated as lower priority than secondary loan agencies is a significant factor.
Even so, because there are no fundamental differences between project financing and corporate financing, other than the way of loan contract depending on business process structure, necessity of collateral right is essential for bank, which provide exclusive effect before real estate sales announcement, even if it is project financing. Looking at the present real estate market trend that significantly large portion is not sold after sales announcement, collateral is desperate for banks managing real estate project financing appears to be risky. On the other side, in addition to limit of corporate financing that relying on business owner’s credit and asset, based on potential to create high profit from low investment if management is well structured, demand of real estate project financing in financing trade is significantly high. Development business has been preceded relying on construction companies until these days even though real estate project financing must be managed in balance of market demand and collateral request. Some development projects are stopped due to problems in construction companies’ financial capacities.
If this trend can’t further be limit within self-controlled boundary, restructure of project financing for development of residential or commercial real estate may be significant issue needing sufficient discussion. This issue is critical if it caused by not only real estate policy limiting choice banks make, but also deficiency in legal system related to project financing. Based on the above, second step below is to suggest discussions.
First of all, it is adequacy evaluation of present real estate project financing that depends on personal guarantee. And facing the reality depending sorely on payment of sales, it is believed that there are many cases development company change its development business main body and/or subject, or liquidate development business.
Here, it is necessary focus ‘Real Estate Project Financing and Collateral Right’ as the original intension of Financing and Collateral, and the following problems may arise in this view.
Firstly, problem with collateral function of cash flow. Other than the fact future sale payment becomes recovery/collection of loan lent, a question is whether the idea that the future sales payment may become collateral of present loan lending coincides collateral law with principle logic of in a legal sense. It is the supporting evidence of this question with the fact that the portion when value of land, etc.,provided as collateral is less than loan amount is covered in a manner with liability property provided by construction company as payment guarantees. Therefore, it is necessary to pay attention to ⅰ) Dividing pre-completed project into pre-sales and post-sales, how cash flow after sales function in pre-sales project collateral power,ⅱ) Dividing into project in progress and completed project, how cash flow generated by completed project function in collateral power during construction before the sales.
Secondly, it is to understand collateral value with collateral power. Project asset may be valued only with project contract, and project contract may be valued only when project is progressed. Therefore, the above mentioned demands fair and adequate and all the project asset must be transferred when development company collateral r liquidate development business due to default. Especially, it is more necessary to continue the development business in progress with change its development business main body and/or subject by collateral right implement.
However, under the circumstances that comprehensive collateral right for total business right is not fully recognized or imprecated, it is a question whether to be able to sell total business right through collateral right implement on each individual’s asset. Possible problems in detail are, ⅰ) whether collateral right over the land include newly constructed building in progress, ⅱ) how it related with movable asset collateral right in 「The Law related Collateral with Movable AssetㆍBond, etc.,」 to be executed from 2012.6.11, ⅲ) In case collateral right exist, how to balance with general right and collateral right of unit property buyers or how to protect divided ownership of unit buyers may be protected in the process of collateral right implement, etc.,Thirdly, problem is with priority reservation of collateral right. Because many businesses are involved in the development business during it was preceded for long time, it is important for the lender to reserve priority in collateral right. Especially,relationship between collateral right and property lien right becomes problem. As an ⅰ) whether construction company providing ⅱ) If construction company make special agreement to surrender property lien right, it must be examined whether sub-contractors contracted with construction company, material suppliers, etc. may not claim property lien right.

영어초록

Real estate project financing appears to be depending more upon contractor’s unconventional mode rather than conventional project financing. Looking around the world, not only this type of project financing is not put in practice except Korea,but also this type, definition or expression is neither recognized or nor understood.
Even in USA where project financing began in the earliest age, only collateral based loan exists as a real estate development financing. Of course it is totally up the project owner with his free decision and determination whether to finance his/her real estate project using available collateral. The past experience with certainty of collection/recovery of loan by continuous increase in real estate’s value may not be ignored. Also here, real estate policy that right of primary banks is treated as lower priority than secondary loan agencies is a significant factor.
Even so, because there are no fundamental differences between project financing and corporate financing, other than the way of loan contract depending on business process structure, necessity of collateral right is essential for bank, which provide exclusive effect before real estate sales announcement, even if it is project financing. Looking at the present real estate market trend that significantly large portion is not sold after sales announcement, collateral is desperate for banks managing real estate project financing appears to be risky. On the other side, in addition to limit of corporate financing that relying on business owner’s credit and asset, based on potential to create high profit from low investment if management is well structured, demand of real estate project financing in financing trade is significantly high. Development business has been preceded relying on construction companies until these days even though real estate project financing must be managed in balance of market demand and collateral request. Some development projects are stopped due to problems in construction companies’ financial capacities.
If this trend can’t further be limit within self-controlled boundary, restructure of project financing for development of residential or commercial real estate may be significant issue needing sufficient discussion. This issue is critical if it caused by not only real estate policy limiting choice banks make, but also deficiency in legal system related to project financing. Based on the above, second step below is to suggest discussions.
First of all, it is adequacy evaluation of present real estate project financing that depends on personal guarantee. And facing the reality depending sorely on payment of sales, it is believed that there are many cases development company change its development business main body and/or subject, or liquidate development business.
Here, it is necessary focus ‘Real Estate Project Financing and Collateral Right’ as the original intension of Financing and Collateral, and the following problems may arise in this view.
Firstly, problem with collateral function of cash flow. Other than the fact future sale payment becomes recovery/collection of loan lent, a question is whether the idea that the future sales payment may become collateral of present loan lending coincides collateral law with principle logic of in a legal sense. It is the supporting evidence of this question with the fact that the portion when value of land, etc.,provided as collateral is less than loan amount is covered in a manner with liability property provided by construction company as payment guarantees. Therefore, it is necessary to pay attention to ⅰ) Dividing pre-completed project into pre-sales and post-sales, how cash flow after sales function in pre-sales project collateral power,ⅱ) Dividing into project in progress and completed project, how cash flow generated by completed project function in collateral power during construction before the sales.
Secondly, it is to understand collateral value with collateral power. Project asset may be valued only with project contract, and project contract may be valued only when project is progressed. Therefore, the above mentioned demands fair and adequate and all the project asset must be transferred when development company collateral r liquidate development business due to default. Especially, it is more necessary to continue the development business in progress with change its development business main body and/or subject by collateral right implement.
However, under the circumstances that comprehensive collateral right for total business right is not fully recognized or imprecated, it is a question whether to be able to sell total business right through collateral right implement on each individual’s asset. Possible problems in detail are, ⅰ) whether collateral right over the land include newly constructed building in progress, ⅱ) how it related with movable asset collateral right in 「The Law related Collateral with Movable AssetㆍBond, etc.,」 to be executed from 2012.6.11, ⅲ) In case collateral right exist, how to balance with general right and collateral right of unit property buyers or how to protect divided ownership of unit buyers may be protected in the process of collateral right implement, etc.,Thirdly, problem is with priority reservation of collateral right. Because many businesses are involved in the development business during it was preceded for long time, it is important for the lender to reserve priority in collateral right. Especially,relationship between collateral right and property lien right becomes problem. As an ⅰ) whether construction company providing ⅱ) If construction company make special agreement to surrender property lien right, it must be examined whether sub-contractors contracted with construction company, material suppliers, etc. may not claim property lien right.

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