도산절차에서 금융리스의 법적 성격에 관한 연구

Atypical collateral, such as transfer for security and ownership retained sale, is not a security right in normal times. However, in insolvency proceedings, atypical collateral often constitutes the underlying business asset for the debtor’s reconstruction. As a result, there have been several discussions on whether the legal nature of atypical collateral should be interpreted as a security right to restrict creditors’ exercise of take-off rights. And these discussions have several implications for the legal nature of financial leases in normal times and insolvency proceedings, which are a type of atypical collateral. The discussion of the legal nature of atypical collateral in insolvency proceedings is, in the end, a question of whether to emphasize system consistency between civil law and insolvency proceedings or adjust legal relations to achieve the purpose of the insolvency proceedings. In other words, it is a question of how far the scope of the exception will be allowed. In Korea, the legal nature of atypical security is inconsistent in both normal times and insolvency proceedings. As a result, despite the difference in legal relations, there is no choice but to discuss the legal nature of atypical security in insolvency proceedings through interpretive theory. First, in rehabilitation procedures and individual rehabilitation procedures, the collateral for atypical security constitutes the underlying business asset for the debtor’s reconstruction. Therefore, the exercise of the right to take over by creditors should be restricted only when the legal nature of atypical security is interpreted as a security right. On the other hand, bankruptcy proceedings are liquidation-type procedures, so there is no reason to change the legal nature of normal time and bear a difference in legal relations. Therefore, it is reasonable to follow the legal nature of atypical collateral in bankruptcy proceedings as it is in normal time.