한국에서의 동산 및 채권 담보법 입법방안

1. A new secured transaction law or a new publicity system is crucially in need for the movable properties/receivables transactions in Korea. UNCITRAL(United Nations Commission on International Trade Law) commissioned at its 34th session in 2001 the Working Group VI (Security Interests) to prepare a legislative guide on secured transaction (security interests) mainly to facilitate secured lending. A well-designed secured lending legal regime is believed to have beneficial effects on both lenders and borrowers as well as the whole national economy through the enhanced credit availability at a lower cost. Preparation of a legislative guide for the legislators of the domestic secured transaction law was preferred by the Working Group to that of a convention or a model law in view of the complexity of the involved issues and the huge variety of the domestic legal systems working in the member states. The work result is expected to be finalized very soon. According to the guide, the scope of the proposed secured transaction law should apply to all types of movable property and attachment, tangible or intangible, present or future, including inventory, equipment and other goods, receivables, rights to payment of funds credited to a bank account, etc. with some exceptions. The basic approach to the secured transaction law should be to ensure that the law covers in an integrated and consistent manner all forms of contractually created rights in movable property to serve security purposes, including rights under a transfer of title to tangibles, an assignment of receivables for security purposes, a retention of title sale, a financial lease or a hire-purchase agreement. To accommodate the various legal environment of the member states, the guide allows the legislators to adopt either a unitary approach or a non-unitary approach to achieve the goal. Most noticeably the guide recommends a filing system, or a public registry system for the registration of notices, for the security interest to have a third party effectiveness (equivalent to the perfection under the UCC Article 9). Certain alternative methods are allowed to achieve third party effectiveness such as the transfer of possession of the encumbered asset or the establishment of a control in the bank account, inter alia. The caveat here (from the viewpoint of Korean law), however, is that the possession should be actual possession of tangibles by a person, and does not include constructive, fictitious or symbolic possession. Korean civil code adopted the so-called Pandekten system or jus civile, vis-a-vis the Anglo-American or the common law system. The basic security right over the movable property as prescribed by the Korean civil code is the pledge or the contractual lien where the creditor should maintain the possession of the encumbered property. This requirement hinders the practicability of this security device so severely that it is rarely observed in use in a commercially meaningful lending transactions. Various title transfer type security schemes were invented to circumvent this requirement, and were prevalently used in the market. The court generally endorsed the legality of these practices and there is a long list of detailed case laws developed to make the title transfer type security more predictable and reliable. However, due to the lack or insufficiency of a reliable publicity method, there were myriads of legal disputes among the concerned parties every year and this uncertainty worked against the credit availability at a lower cost, thus harming all the parties concerned. The proposed filing or registration system is believed to be a good solution to this situation. As will be mentioned below the new law adopts the registration system as its basic publicity method. In view of the increased importance of the movable property or receivables in the fast changing economy and the failure of the current secured transaction law to entertain the ever-increasing market need for a reliable secured transaction regime, a substantial breakthrough is crucially in need in Korea. 2. The preparation of the new secured transaction law - Draft Law Concerning the Registration of the Assignment of Movable Properties and Receivables. Korean Supreme Court commissioned a task force (Special Registration Research Team) to study and prepare a proper registration system to accommodate the need in the market for reliable secured transactions involving movable properties and receivables as mentioned above. The Team had 11 sessions to complete its first stage study, 4 sessions involving representatives from relevant governmental agencies, financial institutions and various industries, and two more sessions to prepare the draft law. During the procedure the Team received several input on the major issues in the proposed draft law from relevant bodies, including various ministries, industrial or professional associations and law professors. The Team decided to prepare a special law for the registration of the assignment of movable properties and receivables rather than to revise the Civil Code itself. In this regard, general provisions comprehensibly regulating creation of a security right, rights and obligations of the parties/third-parties, the enforcement (post default rights) of the security rights or the conflict of laws would not be included in the draft law. The law would instead focus on the assignment of movable properties and receivables and its registration. The key features of the new law are as follows. The key objectives of an effective and efficient secured transaction law as described in the UNCITRAL Legislative Guide were very useful guidelines. Most of its Chapters II and III were accepted, though as mentioned above the new proposed law is not much ‘integrated’ in the sense that the relevant provisions of the Civil Code and the new proposed law will both be in place. As a result various forms of a retention-of-title sale, a financial lease or a hire-purchase agreement are not regulated by the new law. A ‘true sale’ under the asset backed securitization law on the other hand will be registered under the new law even though it is not intended to create a security right. The assignor under the law was limited to a legal person. There is no limitation on the assignee or the third party obligor. The reasons for this limitation were i) the convenience and reliability of the search will be increased by organizing the registry according to the assignors while the registry is linked to the commercial registry, and ii) in the beginning stage the registration system is expected to be utilized mostly by the corporations. The registry will be kept and maintained electronically and will be linked with the commercial registry. This will increase the reliability and convenience of the search and improve the publicity. Electronic filing and searching will be allowed. The registration will have the same effect as that of the transfer of the possession in case of the assignment of the movable properties, and the notice with a fixed date in case of the assignment of the receivables. The priority will be decided based on the time. There is no difference in the accessibility to the registered information between the interested parties and a third party, that is a third party will have a full access to the registered information. Registered security right holder on movable properties will have security right on the sales proceeds as long as the right holder seized the proceeds, and will have priority to the security right holder on the receivables even registered, if late in time. 3. Conclusion The main purpose of proposing the new law is to accommodate the need for a reliable secured transaction regime in the market and to remove the uncertainty arising from the lack of a proper publicity system, so that the transaction cost could be reduced and reasonable lending and borrowing could be fostered. In this regard, the new law is more concerned with preserving the vital dynamics of the market and expects to be selected and preferred as the most workable vehicles for the secured transactions prevalent in the market. On the other hand the new law is meant not to disturb, as far as possible, the integrated legal system of the Civil Code, not because to worship its infallibility but to avoid unnecessary disorder and confusion in the market. The new law nonetheless will prove to be an important step in the development of the secured transaction law in Korea.