集合債權 讓渡擔保와 否認權의 行使

Abstract

In addition to the implication of right to claim the payment against debtor, a claim may have the function of security in the aspect that it has the property value like the way of personal property or real estate. In a realistic sense, in the event of creditor who has a number of small amount claims which may be insufficient for property assets on real estate or the like, the value as the security in each individual claim is insignificant that there is necessity to provide the security with all these claims collectively combined as one. And,even if the claim is not about a small, there is a need to transfer a number of claims to transfer in one lump set as in the same way to obtain more claims. The collective claims security by means of transfer may be termed as a new mean for financing in responding to the demand from such practitioners. In the event of the reserved type and suspension condition type collective claims security by means of transfer, even if it is expected for the crisis situation of the party to set the security interest, it is interpreted as not subject to exercise the right of avoidance under the current law (Debtor Rehabilitation and Bankruptcy Act). However, in such a case, the principle of equality for creditor that is particularly required at the time of being violated that it would deviate from the legal order as purported by the current law that it has to recognize the exercise of the avoidance right thereof. To be short, the Special Act (Act on Securities in Personal Property,Claim and others) has prepared the system to register the collective claims security by means of transfer, if not complied with such a procedure, the avoidance shall be granted in principle.