장래채권양도담보의 공시적 효력의 문제점과 개선방안

Abstract

Despite of the fact that there had been increasing demands for financial transaction about a future bonds transferring security, it was very rare to find the actual cases of providing the future bonds as a security in Korea. The way of public announcement for transferring the future bonds could only be made under the article 450, or the article 451 of the civil law. It was because there was the strict principle that the public announcement could be effected only after the transferor informed the third party debtor of transferring the future bonds. Such being the case, the Act of Movable assets․Bonds Security was established. And this Act has become such an innovation in the bonds security system. 8 months after the Act came into effect, there have been 2,100 movable assets․bonds security cases reported. 1,721(82%) cases of the record were for movable assets, while 379(18%) cases were for bonds security. (This statistics was collected in February, 2013 through the online national legal registry office, which can be slightly different from the latest records.) The important fact of this statistics is that more than half of all bonds security cases are the ones for future bonds security. Thereupon, I have indicated the potential problems that might arise from taking future unspecified bonds as the purpose of security according to the Act of the bonds security, and considered the solution through this paper. This act has introduced the special method of public announcement while the opposing power of the Act under the civil law still remains. According to this, security right holder should publicly announce the registration of transferring of bonds as a registration when transferring the bonds is for the purpose of security. As soon as it's registered, the security right holder's opposing power against the third party starts to take effect. Any bonds that have certain possibility at the time of transferring can be the subject for the purpose of the security. Moreover, future unspecified bonds can also be the bonds for transferring security as long as the third party debtor has not be specified. To sum up: ① future unspecified bonds can be the subject for transferring security registration, ② the opposing power to protect the security right holder takes place as soon as the bonds are registered, ③ security right holder or creator of security right can prove their opposite power against the third party debtor by informing the third party of the fact of registration through the certificate of registration, and finally ④ if this collides with public announcement system of transferring the bonds under the current civil law, security right holder can assert their right according to the registration and the arrival of its notice or the order of approvement. The reason to make nominative claims as the purpose of transferring security, and to have the claims include the requisites for opposing power is to protect the third party debtor and security right holders. The issue is, however, that there is a lack of methods to protect the third party debtors in the Act of Bonds Security. If future unspecified bonds can be the purpose of security when the third party debtor has not been specified, it is impossible to make a public announcement for the third party debtor. Therefore, when the third party execution creditor appears in the middle of specifying the registration and the third party debtor, there is no way to stop the reimbursement for the third party debtor. This also collides with the civil execution law (refer to article 227 and article 231 of the civil execution law). In conclusion, it is necessary to make it an obligation for the security right holder to notify the third party debtor after the registration in order to solve these possible problems. Also, the public announcement system should be standardized by putting the statement that if the methods of public announcement for transferring future bonds security are not stated in the civil law, they will follow the ones in the Act of Bonds Security.