담보권신탁 제도의 활용 방안에 관한 고찰

A syndicated loan, which involves a large number of financial institutions forming a syndicate to extend a loan to a borrower, is one of the primary means of financing used by corporations around the globe. Considering its inherent structural and transactional efficiency, many prominent financing deals (whether corporate finance, project finance, aircraft finance, ship finance or acquisition finance) are consummated in the form of a syndicated loan. In many syndicated loan transactions, a loan is often extended on a secured basis; also, financial institutions tend to participate in such deals based on the underlying assumption that they would be able to freely transfer their loans afterwards. Where security is provided to secure loan obligations owed to lenders, difficulties may arise with effecting a loan transfer if assets (being the subject of security) are located in Korea. Such difficulties, in essence, stem from the need for the secured parties to be identical to the actual lenders, due to the principles of “accessoriness” under Korean law. As a result, security over assets located in Korea needs to be created in favor of all individual lenders (as opposed to a single entity appointed as security trustee by the lenders). Creation of security in favor of all individual lenders potentially means enormous practical burdens and transaction costs. In the context of real estate or aircraft financing, for instance, each loan transfer would necessitate undergoing a complex and laborious re-registration process and incurring substantial costs so as to ensure a valid and effective transfer of security interest (in tandem with a change of lender resulting from the relevant transfer). Such burdens and costs are, no doubt, a huge impediment to the immediate parties to the transfer. The adverse effect does not, however, stop here; for instance, financial institutions participating as lenders may be discouraged from participating in the relevant loan transaction in the first place if they knew their ability to transfer may be restricted; this would, in turn, ultimately impact the borrower’s ability to access the necessary capital at the outset. Unfortunately, the difficulties associated with effecting a transfer of secured loans as highlighted above have remained mostly unaddressed by Korean scholars. This is both surprising and disappointing, considering that Korea does have, at its hand, a feasible alternative to consider in lieu of its current security regime, namely a Korean security trust regime under the Trust Act of Korea. This security regime has its roots in, and thus is similar in substance to, a security trust under English law. Despite the availability of such alternative, no meaningful study or research has been undertaken in Korea so far on how to overcome the difficulties associated with the current security regime by building a better security system using the above-mentioned alternative. The security trust scheme, given its trust structure, allows for security to be created in favor of a single entity (i.e., security trustee) who acts for lenders (i.e., beneficiaries). Under this arrangement, no separate procedures are needed to ensure perfection of security after each loan transfer, as the secured party (i.e., security trustee) remains the same despite any subsequent loan transfers (however frequent). However, despite being theoretically available for use in Korea, the security trust scheme has not been used at all in practice. Such lack of utility is attributable to, among other things, the limits placed on the type of activities that could be engaged by a trustee company under the Financial Investment Services and Capital Markets Act and the lack of streamlined statutory provisions contained in other related laws (thus giving rise to inconsistencies and confusion in the interpretation and application of the Trust Act). It is thus proposed that the current security trust scheme in Korea be modified or improved by amending the relevant statutory provisions.