자산유동화법의 개정방향 - 제13조(자산양도요건)의 재검토 -

Companies get several benefits from financing with Asset-Backed Securitization tools, the merits of which are fundamentally based on the isolation of transferred assets from the bankruptcy risk of the original asset holder(i.e. asset transferor). On the matter of what an asset transfer is, the Korean Asset-Backed Securitization Act(hereinafter, ABS Act) provides several conditions which must be met to be 'regarded' as an asset transfer under this Act. Nevertheless, Art. 13 of the current ABS Act has controversial issues: This article compels several formal requisites to be approved as an asset transfer according to the ABS Act. Besides that, it has ambiguous provisos which don't seem to harmonize with the point of isolation from bankruptcy risk of the asset transferor. Requisites of Art. 13 don't seem to be consistent with Korean Debtor Rehabilitation and Bankruptcy Act. Therefore, I suggest that the current Art. 13 of the ABS Act be revised to be focused on transfer of substantive risks and benefits(i.e. a functional approach rather than a control transfer approach) in the aspect of the original asset holder's interested parties. Moreover, the final decision in the bankruptcy procedure of the original asset holder should stand on the basis of the whole asset-backed securitization structure instead of the trade of asset transfer itself.