일본의 채권담보제도의 입법에 관한 연구 - 채권질권 및 채권양도담보권에 관한 담보법제연구회의 입법제안을 중심으로 -

Abstract

In Japan, the Working Group for Security Legislation has worked for improvement of collateral system on movables and claims from March 2019 to March 2021, and issued legislative proposals in the form of final report in April 2021. This report consists of three parts, the first part is on chattel mortgage, that is the property security by means of transfer, the second part is on claim security, that is the claim security by means of transfer and pledge of claims, and the last is on securities over other objects except properties and claims, that is security of deposit and finance lease. Among these three parts of the proposals, I studied the proposal about claim security in this paper. The main issues of claim security are as follows. The first issue is about the legal basis for security on claims. Second, regarding the collective claims security by means of transfer, the concept and requirements of collective claims, the disposal of individual claims by the debtor, and the effect of garnished claim by another creditor of the debtor. Third, regarding the requisites for counteraction and superiority relations of claim security, the superiority relationship between the pledge of claims and the claim security by means transfer, the superiority relationship between notification․acceptance and transfer registration as requisites for counteraction of the security. Fourth, regarding the execution of claim security, the working group is proposing the debt collection and the private execution by creditor as kinds of executions and their procedures of each execution. This paper presents implications for the Korean legal system by analyzing and evaluating the proposals of the working group with related Japanese theories and precedents.