유동화회사의 인식의 귀속문제 – 대법원 2011. 4. 28. 선고 2009다47791판결 -

When an SPC’s knowledge or constructive knowledge is at issue, it isnot clear whose knowledge should be attributed to the SPC. In an asset-backed securitization transaction, a Special Purpose Vehicle,whether in the form of a company (Special Purpose Company: SPC) or atrust or other entity, is used in order to partition the specific assets andliabilities from the originator. An SPC is set up as a paper companywho lacks its own management personnel, with limited purpose ofholding and servicing the assets and the debts. As such, an SPC’sdirector does not perform any positive activities; all of the SPC’sfunctions are delegated to servicer or administrator. Consequently, whenthe servicer, the administrator, the originator or the ABS investor hasknowledge of certain fact, it may be reasonable to treat the SPC ashaving known that fact regardless of the SPC’s director’s ignorance. In April 28, 2011, the Supreme Court of Korea rendered a decisionconcerning the SPC’s knowledge (Case no. 2009Da47791). In this case,the seller’s sale of the assets to the SPC was not duly authorized by theseller’s board. A creditor of the seller (the “Sponsor”), who was to getpayment of her debt from the proceeds of the securitization, played aleading role in structuring the securitization scheme, providing certaincredit-enhancing commitment. The Supreme Court of Korea held that thepurchaser of the assets – the SPC for securitization – had knowledge ofthe seller’s lack of authorization based on the fact that the Sponsor hadknown the lack of such authorization at the time of the signing andclosing of the securitization transaction.