소유권유보부매매의 민법 및 도산법상 취급 -대법원 2014. 4. 10. 2013다61190 판결-

The issue of the Supreme Court 2014. 4. 10. Sentencing 2013Da61190 judgment is that the construction machinery was sold by the Retention of Ownership and the buyer was unable to pay all of the proceeds of the sale. This is a precedent for whether the seller can exercise the right of refund when the buyer’s insolvency procedure begins. In the above judgment, the Supreme Court concluded that; ‘As the ownership held by the seller has the substance of the lien, it is reasonable to treat it as a security interest in the insolvency proceedings for the buyer as well as the transfer for security purpose. So the seller can not exercise his or her mortgage privately after the insolvency procedure begins.’ However, the current Civil Law and the Insolvency Laws do not specify the nature of the sale of ownership retained. In theory, there is a conflict of opinion on how to judge a retained ownership sale. The court ruled differently before and after the commencement of the insolvency proceedings. In the case of the ruling, the ownership retained sale was treated as a lien if the insolvency proceedings were initiated. In this study, we examined the process of insolvency to see what is the most valid theory about the nature of the ownership retained sale, and additionally discussed it in the aspect of the Civil Law. In conclusion, my argument is that the interpretation of the lawful act of holding the title of ownership should be construed as a willingness to set up a lien in accordance with normative or supplementary interpretation methods. In the absence of such interpretation, a logical contradiction arises that would infringe the option of the insolvency administrator, or that the seller would return the object without releasing the contract, leading to an overcompensation.