電子어음제도의 현황과 법제도적 과제 -한국의 電子어음법과 일본의 電子債權記錄法의 비교에 기초하여-

Abstract

In Korea, one of most popular traditional financing scheme is an issuance of promissory notes and a discounted assignment of its claims. However this scheme requires the payment of costs related to the issuance, delivery and storage of promissory notes, and is a susceptible to the theft or loss of notes/bills. Considering these problems, the Electronic Promissory Notes Act was enacted in March 2004 in Korea. With this Act, the electronic notes system electronically establishes bills and notes and provides a method a perfecting claims. It is known that this Act is the first law of its kind internationally. Japan enacted the similar law regarding electronic notes and electronic claims. However, two systems between Korea and Japan are substantially different in practice. In Japan, the Electronically Recorded Monetary Claims Act was enacted on June 20 2007 and took effect in December 2008. The system of electronically recorded claims established by the new law provides for new types of monetary claims that are completely different from existing ones. As a means of raising funds by utilizing monetary claims, a business operator can assign its accounts receivable and bills/notes drawn to another company that has a business relationship with the business operator or pledge them as collateral to such company. However, the problem with assigning accounts receivable or pledging them as collateral is that it costs time and money to confirm the existence and the identity of the owner of receivables to be assigned. Likewise, the problem with assigning bills/notes or pledging that as collateral lies in the custody costs, risk of loss, etc. inherent in the bill/notes in paper format. The electronically recorded monetary claims system seeks to eliminate the aforementioned shortcomings of bill/notes and nominative claims and facilitate business operators/ financing activities by creating a type of monetary claim that is different from nominative claims and bill/notes receivable, and thereby ensure the security and liquidity of transaction. Accordingly electronically recorded monetary claims can fulfill the same function as substitutes for bills/ notes, as measures similar to those for bills/notes have been taken to ensure the security of transactions. To compare the Korean Electronic Promissory note system with Japan's electronically recorded monetary claims system, there is following common features. First of all, neither type of claim is affected by the existence or validity of the legal relationship that substantially created the claim. Second, neither type of claim is recognised without a electronic records. Third, the obligations and rights under both types of claim are determined only by what is recorded in electronic records. Both system has no written documents issued for the claims. This lack of written documents results in the elimination of costs associated with the issuance, delivery and storage of written documents as well as the elimination of the risks of theft or loss of written documentation. Forth, partial or full satisfaction of claim or endorsement is allowed in both system. That means that they can be used for making payments to multiple secondary supplier. One key difference between electronic promissory note system and electronic recorded monetary claims is the fact that endorsement is not needed in later system. Instead that, guarantee scheme can be used to establish guarantee obligation under the law. In addition, Japan’s law establishes principles of acquisition in good faith and inability to claim affirmative defences to ensure the certainty of transactions of electronically recorded claims. However, there is some controversial debates regarding whether acquisition in good faith is recognized In electronic promissory note system in Korea. Considering the function of note/bill issuance scheme, Electronic Promissory Notes Act should guarantee to facilitate financing for businesses by ensuring the certainty of transaction of claims. In addition, not only the transaction itself but also the payment must be assured to facilitate a transaction involving electronic promissory notes. According, claim recording and processing institution’s responsibility should be manifested and guaranteed by the Law. In this regard, this paper discussed what kind of legal and practical challenges and limits faced by electronic promissory notes in Korea and suggested some proposal for the increasing use of electronic notes as a valuable financing tools for the small-medium business operators.