회생절차개시결정과 집합채권양도담보의 효력이 미치는 범위

This paper focuses on the case, 2010Da63836, rendered by the Supreme Court of Korea on March 28, 2013. The case is significant in regards to the following issue: how the enforcement of security right and the decision to commence rehabilitation proceedings affects the scope of the security right’s subject matter. Particularly, with respect to collective receivables assigned by way of security that includes the widely-used future claims. First of all, the Supreme Court decided that even in cases where the creditor exercises rights concerning the existing claims that are contained within the scope of the subject matter of assignment of receivables as security, the creditor will further be able to excerise subsequent future claims that may arise until paid in full. The decision is based upon the Court’s well-reasoned analysis on interpretations relating to collective receivables assigned by way of security under agreements, the scope of the security right’s subject matter, and the enforcement of the creditor’s security interests. This overruled the lower court’s decision that viewed security right’s subject matters as lacking liquidity. The lower court’s view that the scope of these rights as being fixed to present claims only, and unable to be exercised onf future claims, was also overturned by the Supreme Court’s decision. In addition, the Court clarified that when the bankruptcy trustee manages the debtor’s property including any inventory and receivables due to the decision to commence rehabilitation proceedings, any future claim that results from administering such property is not subject to any previously existing security rights. The case reasoning, however, seems to be less persuasive on this point. Despite the trustee’s power to dispose insolvency property, in the end this affects the debtor. Along the same line, since the debtor’s assignment of future claims that was performed before the commencement of the rehabilitation proceeding is also valid, the reasoning behind this issue proves to be weak as well. Another issue dealt in the case was that any claims to security interests occurring after the rehabilitation proceedings commence should be used to rehabilitate the debtor rather than to repay existing creditors. This is a policy factor that was appropriately taken into consideration by the Court. Yet, since how much protection can be afforded to the existing security right holder of future claims in insolvency proceedings is a questionable issue that lies in the basis of bankruptcy laws, the Korean Bankruptcy legislation should also implement mechanisms that are found in the U.S. and Germany legal systems. With the absence of legislation on this matter, since the future claims assignment as security was perfected along with the notice of the assignment by the debtor, it only seems logical to give priority to the existing security right holder of future claims. If this is the case, the conflicts among the interest holders in the bankruptcy proceedings can be resolved through diverse methods such as examining unfair legal actions or violations of fair dealing or public policy, determining whether an creditor has perfected collective receivables assigned by notice, avoiding unfair preference, avoiding perfection and assessing collateral values. Due to the decision rendered, the values of future claims as collateral have declined, forcing finance institutions to assess lower values to such claims. In turn, this will inevitably cause a negative effect on the debtor who seeks to finance before to the beginning of insolvency proseedings. New legislation is needed to draw a line between future claims that can or cannot givr priority to the creditor(security right holder) as a result of the decision to commence rehabilitation proceedings. Consequently, this will facilitate in creating a balance between the security rights holders of future claims and other creditors within the insolvency proseedings.