연장된 소유권유보의 회생·파산절차상 효력

Abstract

In an agreement for extended reservation of ownership, a seller grants the right to dispose of the object of sales to a buyer while reserving the ownership of said object to create a security for the performance of obligation on the part of a buyer to make the payment of purchase price, and a buyer assigns to a seller in advance a future claim to be acquired from the disposition. Assuming that the legal property of a future claim is an expectation right to the acquisition of claim, the expectation right to acquisition of claim is transferred to an assignee by the act of assignment. Since this assignment of claim is for the repayment of claim unless there are particular circumstances, and it cannot be deemed to have replaced the repayment of claim, the obligation of a buyer to pay the purchase price lapses only when a seller receives the repayment of assigned claim. Therefore, even if the object is delivered to a buyer, the reserved object does not belong to the property of a buyer until the purchase price is paid in full. As a result, even if a buyer assigns to a seller a future claim to be acquired from reselling of the reserved object in times of crisis in accordance with the agreement for extended reservation of ownership, it is not assessed as the reduction of a buyer’s property, and thus the object does not fall under the category of denial. In addition, the effect of extended reservation of ownership reaches the reserved object as well as the claim to be created from the reselling of reserved object, etc. Therefore, with the commencement of the procedures of insolvency of the buyer, the seller is entitled to exercise the right of repossession for the reserved object, which is possessed by the buyer-obligor, and if a claim is created before the commencement of insolvency procedures due to the fulfillment of condition based on the disposition of the obligor, the effect of extended reservation of ownership shall be deemed not to be affected by the commencement of insolvency procedures. On the contrary, if a claim is actually created after the commencement of insolvency procedures due to the fulfillment of a condition precedent based on the act of a receiver, the receiver is placed in the position of an official trustee, and such a condition precedent is not fulfilled by the buyer, the obligor or any other person equivalent to the obligor. Therefore, the extended reservation of ownership shall be deemed not to have effect on the claim created after the commencement of insolvency procedures.