미국법하에서의 진정매매 이론과 그 시사점

There are several differences in the determination of “True Sale” between the current practice of asset backed securitization (“ABS”) transactions in Korea and the attitude of the US courts. By comparing such differences, the author hopes to assist with the formulation of a relatively more complete legal principle in relation to the determination of “True Sale” in the future. Firstly, unlikely in Korea, “True Sale” principle is applied to ABS transactions in trust form in the US. In addition, the determination of “True Sale”, together with the determination of substantive consolidation is one of the determining factors of whether transfer of underlying assets achieves bankruptcy isolation. In respect of this, five points to note are introduced. It is important to note that most US bankruptcy courts do not consider the equity under bankruptcy law during the stage where it determines “True Sale”. In light of the US theory, it is necessary to consider deleting or completely amending article 13 of the Act on Asset Backed Securitizations. As the application of principles of contract interpretation is used in the determination of “True Sale” in the US, a “True Sale” is a concept which is different from off-balance sheet treatment and sham transactions. The determination of “True Sale” is not only required for ABS transactions but also title finance transactions. Theories on determining factors of “True Sale” in the US have mostly been introduced in Korea already. However, one additional matter is that some US academics and practitioners, unlike the Korean practice, hold the view that tha nature and not the extent of the risk needs to be looked at in determining whether there is “True Sale”. If one accepts this view,the scope of “True Sale” would be expanded in comparison to the common view in Korea.