동산 및 채권 담보 제도의 개선방향 : 특정성 또는 특정가능성 원칙의 선택

There have been many discussions on the reform of the law of personal property security not only in the individual countries, but also in the international institutions. ‘The Special Rule of Opposability Requirements in Civil Code of the Transfer of the Right in Tangible and Intangible Movables Act’ in Japan, which entered into force 2005 with electronic register substituting for civil law opposability requirements, and the successive reforms of the law of personal property security in France, which have brought about significant changes in the security law since 2006, are the result of the reform discussions, which have been stimulated and strengthened by UNCITRAL’s reports on the guide on secured transactions, which was completed 2008 in the Draft Legislative Guide on Secured Transactions. Korea seems to be in like situation, namely the reform of the personal property security law probably comes around the corner : The Study Group on the Special Register in the Korean Supreme Court, after reviewing foreign laws and trends abroad on the security rights over personal property, suggested ‘the Draft Register of the Transfer of the Right in Tangible and Intangible Movables Act’ 1n 2007 and a ad-hoc special committee appointed by the Korean Ministry of Justice has prepared a new act on personal property security rights. While the discussion contents in academics community are important to set the direction of the would-be reform, many academic essays have still concentrated on the introduction of foreign laws or the discussions in the international institutions on the personal property security rights. With aims at facilitating the imminent reform into reality and making the academic discussions more productive and concrete, this essay emphasizes that the concrete contents of the would-be reform act will vary according to which principle to choose between the identification principle and the identifiableness principle. From the view point of the identification principle and the identifiableness principle, this essay analyzes the security laws in the advanced countries and suggested by international institutions, according to which there are three types: UCC Art. 9 and UNCITRAL’s legislative guide on secured transactions are schemed under the identifiableness principle, while UNIDROIT’s Cape Town Convention and the new french reform security law stand for the identification principle, but EBRD’s Model Law on Secured Transaction and the english security law can be considered to stand in middle path. After the analysis in the comparative law perspective, this essay concludes that there can be a better way to the reform of the personal property security law with keeping the identification principle featuring the traditional Korean Property Law.