장래채권 양도담보의 도산절차상 효력

Abstract

The Effect of Security Assignment of Future Claims in Insolvency Proceeding Choi, Joon-kyu This article examines whether the claims acquired after the commencement of insolvency proceeding are subject to the assignee’s security right, when the future claims had been assigned with a certified fixed date for securing assignee’s credits, before the commencement of insolvency proceeding. The conclusions are as follows. First, the after-acquired claims arising from the insolvency estate are not subject to the assignee’s security right, because the insolvency estate and/or their proceeds, which constitute special assets that ought to be used for the benefit of all non-secured creditors, should not be used for specific creditors. There is no reason to view it differently when security assignment is registered or when future claims are assigned, as the normative purpose of protecting the insolvency estate stays intact. Second, assignee’s security right over the after-acquired claims should be valid when the assignee has a security right over the insolvency estate and the future claims are the proceeds of that security object. This is for the sake of protecting the reasonable expectation of the creditor with a security right over the insolvency estate. In such a case, the assignee can trace the collateral value of the security object under Article 73 of the Debtor Reorganization and Bankruptcy Act on substitution of reacquisition right. But in case of floating liens of collective receivables, the assignee cannot have a security right over the after-acquired claims, which are not the proceeds of the before-acquired claims. Third, assignee’s security right over the after-acquired claims are valid even when the claims subject to a condition precedent become mature before the commencement of insolvency proceeding, if the credit with condition precedent has substantive value at the time of commencing insolvency proceeding and the assignee with security right has a reasonable expectation. But the claims subject to a condition precedent are not subject to the assignee’s security right when the condition is fulfilled at the expense of insolvency estate.