도산절차상 양도담보계약 당사자의 법적 지위

Legal Status of Party to Security Transfer Agreement in Insolvency Proceedings Kim, Young-ju Unlike legal frameworks, security transfer arrangements as a legal measure should be considered as having legal effect depending on its intrinsic structure and characteristics, and should be equally applicable within or beyond the scope of insolvency proceedings. Nevertheless, in cases where legal effect other than the substantial law (such as the Civil Act) is sought for a legal measure in an insolvency proceeding, justifiable ground is needed. Security transfer is generally understood as transferring ownership to a creditor, but more specifically, it is used as a legal instrument by parties concerned for realizing the purpose of security. Furthermore, the concept of security title in insolvency proceedings is based on the definition under the substantial law. In that context, the issue of determining the legal status of parties to a security transfer agreement in an insolvency proceeding is closely related to the legal trait of security transfer. And the purpose of security cannot but be emphasized as to adopting theories on transfer of trust or transfer of security right. In insolvency proceedings, it is reasonable to perceive the security transfer of title as security right and it is necessary to prescribe the security transfer of title within the scope of the right to foreclose outside bankruptcy in an insolvency proceeding. However, taking into account the characteristics and structure of title retention agreements and lease agreements, there lacks justifiable grounds to treat the security transfer of title as security right in insolvency proceedings.