간접점유 동산에 대한 양도담보―창고업자 임치물의 인도방식을 중심으로―

In Korea, financing of funds using personal property as security has not enjoyed much commercial usage due to risks of a double transfer or a double provision of security. Where an owner (being an indirect holder) of certain goods (such as inventories (products or raw materials) or imported goods) intends to grant security over such goods that are held by another party (such as warehouse owner/ carrier) (being a direct holder), such grant of security will necessarily have to be in the form of a “transfer of the right to return of the subject goods” (mok-jeok-mool-ban-hwan-cheong-goo-gwon in Korean) under the Korean Civil Code. Nevertheless, when examining the issue of how goods (which are indirectly held by the owner thereof) may be granted as security, there exist numerous factors to consider, especially given the lack of clarity on point, as highlighted by a conflicting court decision by the Supreme Court of Korea (which provides that goods held in indirect possession (gan-jeop-jeom-yoo in Korean) may be transferred via “agreement on possession” (jeom-yoo-gae-jeong in Korean) and also, by the frequency of a practical method often referred to as a “Transfer of the titleholder of goods” (hwa-joo-ee-chae in Korean) (which refers to the procedures for changing the titleholder of goods vis-à-vis a warehouse owner). With the above in mind, this paper seeks to examine the methods of creating a security over bailed goods (im-chi-mool in Korean) held by a warehouse owner in the context of a warehouse agreement (chang-go-gae-yak in Korean) (it being a representative case of a legal relationship (jeom-yoo-mae-gae-gwan-gae in Korean) that governs the rights among an indirect holder of goods (gan-jeop-jeom-yoo-ja in Korean) and a direct holder of goods (jik-jeop-jeom-yoo-ja in Korean)). Such examination will necessarily extend to ascertaining the extent to which “agreement on possession” and “transfer of the right to return of the subject goods” may be resorted to. The author hopes to contribute to the existing literature by proposing certain standards/guidelines that are drawn from the author’s practical experience of working on a court case that involved determining the priority of rights vis-à-vis security over personal property. In conclusion, firstly, agreement on possession by way of indirect possession should not be recognized as an appropriate legal means as it does not fit well into the current construct of the Korean Civil Code nor there is a proper way to put other third parties on notice which may lead to risks of double transfer thereby threatening the certainty and finality of a given transaction and secondly, as a matter of practice, it would be prudent for an assignee to resort to both means of the transfer of the right to return of the subject goods and agreement on possession by way of indirect possession until such time we have a court decision on point overturning the precedent and/or the relevant laws and regulations are further developed and clarified.