도산절차에서 채권매입업상 영업채권 양도의 법적 성격에 관한 연구

The factoring emerged and developed in the process of overcoming the limitations of traditional financing methods such as direct finance such as stocks and bonds, or indirect finance that provides tangible assets as collateral. In order to revitalize the Factoring in Korea, various regulations on the Factoring were newly established through the revision of the Commercial Act in 1995 and 2010. The factoring is divided into factoring without reimbursement and factoring with reimbursement depending on whether the factor can exercise the right to claim reimbursement to the client when the factor fails to collect the business bond. In Korea, factoring with reimbursement dominates. On the other hand, the normal legal nature of the factoring is regarded as a sale in the factoring without reimbursement and as a consumption loan that provides business bonds as collateral in the factoring with reimbursement. the factoring with reimbursement is only an atypical collateral that uses business bonds as collateral, and cannot be regarded as a transfer of secured bonds. In insolvency proceedings, it is difficult to find existing discussions dealing with the legal nature of the transfer of business bonds under factoring with reimbursement. However, although the atypical collateral such as transfer security and retention of title sales and financial leases are not usually security rights, they target assets that are essential for the debtor's going concern in insolvency proceedings. These atypical collateral are interpreted as security rights to limit the creditor's right to take over. There is also a practical benefit of comparing and studying atypical collateral as above in that it uses operating bonds as collateral. ① If the transfer of business bonds is interpreted as a security right in insolvency proceedings, the difference in legal relations becomes too large, ② atypical security and transfer of business bonds are not similar in the order and method of execution of collateral, ③ that business bonds are not essential assets for the debtor's going concern, ④ that the creditor's disadvantage is not significant even if interpreted as a loan for consumption, ⑤ that the transfer of business bonds may be subject to denial if interpreted as a security right, and ⑥ that the transfer of business bonds should be interpreted as a loan for consumption to revitalize the factoring. Therefore, the transfer of business bonds cannot be interpreted as a security right in insolvency proceedings.