일본에서의 소유권유보 입법에 관한 연구 -담보법제연구회의 입법제안을 중심으로-

Abstract

The the security transactions in Japan is concentrated on real estate security similar to that of Korea, but the decline in the value of real estates due to the collapse of the bubble economy, small and medium-sized businesses are facing a crisis of financing. The Japanese government is pursuing the diversification of security transactions for financial supports to such small and medium-sized businesses, and in particular the Working Group for Security Legislation has started to research security rights concerning movables and claims such as the property security by means of transfer and the retention of title(a kind of the property security by means of reserved ownership to a seller who has not been paid for the whole sale price in installment sale) those have been relied on precedents and theories for their legal bases. In this paper, I tried to analyze the legislative proposal of the working group on the retention of title, and introduced the assessments of Japanese academia about the proposal. Although it is difficult to expect such legislative discussions to be legislated right away, I think that it can contribute to establishing a stable model of security transactions and stipulating the retention of title in the code of law by narrowing the gaps between the theories and transactions practices. On the basis of these points, I am summarizing the legislative proposals for the retention of title of the working group, and presenting the implications and legislative tasks for the security legal system in Korea. First, the Working Group is classifying the types of the retention of title into the two-party retention of title between the seller and the buyer and the three-party retention of title among the seller, the buyer and the 3rd party who has paid the buyer’s price of purchase out, that can be subjected to the laws on the retention of title as a kind of the retention of title to be in the scope of application for the retention of title clearly. Second, as for the requisites for counteraction of the retention of title, it is possible for the reserved owner to assert the retention of title against a third party even if there is no special requisites for counteraction. Third, with regard to the relationship between other security rights and the retention of title, in the case of the simple retention of title which only guarantees sale price, it is given priority over other security rights without any other requirement, in the case of the extended retention of title that guarantees not only sale price but other debts, it is given priority over other security rights in accordance with the order of the requisites for counteraction. Fourth, with regard to the method and procedure for execution of the retention of title, it is allowed reserved owner to choose private realization by the owner or public auction by the court according to the legislative proposal of the working group. As described above, it is evaluated that the working group is proposing specific and detailed legislation on the retention of title. However, the structure of security legislation system in Japan is somewhat different from that of Korea. In other words, the differences are not large between Korea and Japan in the field of movables security by means of transfer that has been applied similar theories by precedents, but there are another movables security rights which is needed registration according to ‘Act on Movables and Claims Security’ in Korea, registration or delivery is only a requisites for counteraction for changes in real rights in Japanese legal system, but it is a requisite for establishment in Korean legal system, so it needs to be distinguished from Japanese legislative system about the requisites for counteraction and the relations of superiority or inferiority with other security rights. In addition, it will be needed to conduct additional researches about the three-party the retention of title and the extended the retention of title related to eligibility of secured bonds by considering business practices of the the retention of title in Korea.