集合債權 讓渡擔保의 有效性에 관한 考察

Abstract

In order to facilitate the collective claims security by means of transfer, there have to be solution for two issues of its validity and method to come up with the requisites for setting up actions. With respect to the validity, the issues involved are whether the transfer is possible for the future claim, its transfer condition, specific criteria for purported claim and the social feasibility. The Special Act (Act on Securities in Personal Property,Claim and others) also recognizes the fact that the future claim can be transferred with the written provisions. However, even if the future claim can be transferred, the issue of its requirement still remains that it would be considered as no need of separate possibility to have the future claim to be validly transferred. This is attributable to the fact that if the possibility is demanded as a requirement for the transfer of the future claim, it would have a great interference on the legal stability or foreseeability for the collective claims security by means of transfer due to the ambiguity of its concept, and furthermore, the possibility has to be the ultimate issue on the value appraisal of subject for transfer by the parties while it is far reaching to consider as the requirement of validity for the transfer contract. In the event that the collective claim that includes the future claim becomes the purported claim of the transfer security, the cause of claim, period of claim, third party debtor, amount and others may be considered as the criteria to determine the specificity,but the recognition for the specificity does not have to be recognized only when the foregoing factors are clearly set forth. The specificity of the purported claim will be recognized if the purported claim can be differentiated from other claims under the social perception under the applicable collective claims security by means of transfer contract. However, in the event that the stipulation is made to transfer ‘all’ claims that the party to set the security interest currently holds and to be acquired in future comprehensively,the terms and conditions of the contract would apply undue limitation on the economic activities of the party to set the security interest or inflict unjust adverse affect to third party creditors to have the possibility of having the validity to be denied as the anti-social act. Therefore, in order for the collective claims security by means of transfer contract not to lose its social feasibility, the party to set the security interest shall not transfer entire assets for the third party creditors. With the exception of special cases, there will be no many cases of having the collective claims security by means of transfer to lose its social feasibility. This is attributable to the fact that, for the case of the collective claims security by means of transfer, the collection right is on the party to set the security interest until the time of having certain causes, such as, the maturity of term, to arise that, under such a condition, the party to set the security interest may freely collect the claim on the third party debtor, and accordingly, not interfere with the right of the third party creditors.