집합채권의 양도담보에 관한 법적 문제

Abstract

The term "collective claims security by means of transfer" can be defined as a non-typical security for which a debtor provides security to a creditor plural nominative claims including nominative claims which will accrue in the future in advance in the gross. While Korean Civil Act does not have provisions for "collective claims security by means of transfer", academic theories and judicial precedent have recognized the effectiveness of it. Collective claims security by means of transfer can be classified into two types of establishment. The one type is called a main contract type in which a debtor transfers collective claims at the time of transfer security contract. The other type is called a reserved type or a condition precedent type in which transfer for security shall enter into force at the time of happening of certain causes like financial crisis of a debtor. Judicial precedent requires the possibility of coming into existence of claims for a future claim, to be the object of transfer for security. However, it is pointless and improper to require the above possibility for requisites of effectiveness of security by means of transfer. I agree with opinions that the possibility of recognition of the identity of a future claim which can be distinguished from other claims by common sense with the transfer security contract itself is enough to be the object of security by means of transfer. Indeed we cannot deny the possibility of not satisfying the requisites for setting up actions at the time of the contract of collective claims security by means of transfer until the time of financial crisis of a debtor, and later meeting the requirements of it at the time of the financial crisis, as it can be the object of the right to set aside under bankruptcy laws, some try to evade being the object of the right to set aside by concluding a contract of a reserved or a condition precedent type, drawing the time of coming into force of security by means of transfer near the time of meeting the requirements of it. Judicial precedent has excluded these cases from the objects of the right to set aside on the grounds that these are reserved type collective claims transfer for security. However, for the conclusion whether these are reserved type of transfer for security, more strict standards shall be applied. In addition, in case of a reserved or condition precedent type of transfer for security, if the motive of the transfer security contract is to deviate from the fundamental principles of bankruptcy laws, it shall be the object of the right to set aside, so as not to infringe unreasonably on the interests of general creditors in the bankruptcy procedure.