도산법상 채권담보권자의 지위에 관한 연구 - 회생절차에서 담보목적물의 범위 확정을 중심으로 -

Abstract

The transfer of future receivables and security thereover have been recognized under the Korean law. However, Korean law does not provide in detail how to treat the security rights over future receivables under the rehabilitation proceedings. In this circumstance, the Korean Supreme Court decision on March 28, 2013 (2010da63836) shed a light on this issue. This Supreme Court decision ruled that receivables of the estate acquired after the commencement of rehabilitation proceedings are not subject to Yangdo Dambo over collective future receivables, created by the debtor before the commencement of the rehabilitation proceedings. It seems that this court ruling successfully balanced between protection of secured creditors and the debtor’s fresh start under the rehabilitation proceedings. This Supreme Court decision was rendered on Yangdo Dambo over collective future receivables, but the legal theory thereof will also apply to other security rights over future receivables, i.e., security rights over future receivables under the Act on Security over Movable Property and Receivables, etc.(the “Act”) Accordingly, receivables of the estate acquired after the commencement of rehabilitation proceedings are not subject to security rights over future receivables under the Act created by the debtor before the commencement of the rehabilitation proceedings. On the other hand, the Act provides that the security over receivables under the Act extends to the proceeds of the receivables in which a secured creditor had a security rights. Therefore, an asset of the estate acquired after the commencement of rehabilitation proceedings with respect to the debtor is subject to a security right under the Act created by the debtor before the commencement of the rehabilitation proceedings to the extent that the asset constitutes proceeds of encumbered receivables that was assets of the debtor before commencement.