담보법의 체계와 담보특별법의 민법전 편입에 관한 검토

This study addressed the potential for improvement within the legal framework governing security for obligations under Korean civil law, and the incorporation of existing special enactments concerning security into the Korean Civil Code. The following conclusions were reached: (1) The focus of the Civil Code's regulations concerning security should be established within the field of credit security. It is necessary to establish a regulatory framework concerning personal and real credit security, excluding statutory non-credit security such as the right of retention. In this foundational context, the key points of the proposed systematic harmonisation of the provisions concerning security law within the Korean Civil Code are as outlined below: (2) The provisions concerning real security interests in the Property Rights Part (Part II of the Korean Civil Code), namely the chapter on pledges (Chapter 8) and the chapter on mortgages (Chapter 9), shall be consolidated into a single chapter on ‘Credit Security Interests’ (Chapter 8). (3) The provisions concerning personal security shall be transferred from the section on suretyship within the General Provisions (Chapter 1) of the existing Part on Obligations (Part 3 of the Korean Civil Code) to Section 16 of the Contracts (Chapter 2) as a new standard contract. Provisions concerning independent guarantees shall be added here. (4) With regard to sales of possession with reserve, provisions governing the legal relationship between seller and buyer shall be added to the rules concerning sales contracts. (5) However, the rules governing various types of security interests, for which the basis or relevant provisions are laid down in various special laws such as Act on Security Provisions over Provisional Registration or Act on Security over Movables, Claims, are not incorporated into the Korean Civil Code.