집합동산담보의 한계와 개선방안

Abstract

The security of inventory is not used widely because the imperfection of public notification so-called the agreement on possession undermines the stability of security and occurs the risks of double transfer or bona fide acquisition. From these reasons, we suggest that the plan which gives strong legal effects in chattel security and activates the security of inventory is to introduce a new public notification. Otherwise many countries and the international organizations are making an effort to devise new means of security for increase and expansion of the security value by request of the national and international economic activity and of the mobility of financial capital. The movement to unify the chattel security system internationally or to make security by public notification is enhancing actively, and also the effect of that has resulted in significant achievements. The change of chattel security is appearing with different direction from the property law or the law principle for the real rights of security in continental law system because the chattel security system tends to be composed with the contents of common chattel law or common security law. The most characteristic changes of chattel security are that the numerus clausus principle is weakened and the freedom of contract is being recognized. In continental law system the parties can not create real rights of security or change its contents arbitrarily, since the numerus clausus principle that the types and contents of security are determined by law is applied as a dominant principle. But in new real rights law of security the chattel securities are integrated into one security right, and its contents can be decided by both parties' agreements freely. This is the characteristic of common property law that does recognize not the numerus clausus principle but the freedom of contract. Also in new chattel security law the specific principle which is another dominant principle of property law is not recognized. The specific principle is that since the real right is the general right, the specification should be known to the third party. To be known to the third party the rights should be notified by registration of real property or by occupation of chattel, so the specific principle needs to be kept in order to implement the public notification method. But in new chattel security system, one security right is to be set without distinction whether the specific chattel or the inventory, the existing assets or the assets which will acquire in future, and the chattel or the bond. The only needs to contract is the agreement with the scope of chattel and bond between parties. And the mortgaged bond is not distinguished whether the specific bond or the multiple bond, the existing bond or the bond which will issue in future. It is enough that the details of the scopes for the mortgaged chattel and bond are clarified in the security contracts. This new chattel security system is more concerned with the practice than the theory, and is more pragmatic and reasonable. For these reasons, international transaction or international financial institutions are alleging to take advantage of this system. In order to increase and expand the security values, many countries and international organizations are doing every efforts to seek a new security means used throughout the world. The result of their efforts for the new security is that the floating security system in British, USA and Canada, the model law of chattel security which is arranged by EBRD, the agreement of critical equipment security which is arranged by UNIDROIT, the legislation guide of chattel security in UNCITRAL, and the model law of chattel security which is arranged by OAS. Our country legislated the security law of chattel and bond in June 10, 2010 in order to meet the trend of chattel security which is unifying internationally, to ensure the safety of transactions by allowing the notification of chattel which has a limit to use as security because of imperfection of the public notification method, and to provide the financing convenience of the small and medium enterprise and the self-employed through the activation of property flow. Furthermore to increase the effectiveness of the law for the chattel and bond security, the introduction of floating charge, which activates the corporate finance by regarding as one object and setting up one security right to the business assets like as the floating security of British and USA, the business pledge of France and the enterprise security of Japan, has to be investigated.