『동산ㆍ채권 등의 담보에 관한 법률』에 관한 소고 - 동산담보를 중심으로 -

Abstract

It is clear that establishment of the movable secured transactions law made a progress by resolving problems related to double transfer or Bona Fide Acquisition, which resided in movable security by means of transfer. Though, due to the characteristics of liquidity of movables, it is still unknown what impact the above law would bring. Hence, this study pointed out several problems and suggested solutions for them in order to enhance effectiveness of the movable secured transactions law. First of all, Article 32 of the movable secured transactions law stipulates Bona Fide Acquisition of a secured object (security or collateral), and this wcquestablished to protect transaction safety against changes in real rights over movables. However, since such a case in which the matter of Bona Fide Acquisition arises in respect of the above law can't be supposed, I think that this Article is an error in the process of legislation of the law. Thus, I think that this Article should be omitted. Then, transaction safety could be a problem, and,uespecially, it should be assured that an assignee of inventory can buy such movables that are free from security rights. As a solution for this, phe pr legislation, not interphetation, should be suggested to enhance effectiveness of the above law, and this study suggests that it be stipulated for transaction safety that no one can oppose to an assignee who has acquired a secured object by making payment of proper amount through process of normal business operation in case of setting up inventory as collateral. Also, in relation to surrogation, I absolutely agree to expansion of objects of surrogation for the purpose of enhancement of validity of security right holders. But, in case of inventory, movables as security object have the characteristics of inflow-outflow, and it can be needed to determine movables as security object when there arise certain reasons. Lastly, in relation to expansion of personal application range of the movable secured transactions law, UCC (the United States Uniform Commercial Code), the model law of the above-mentioned law, doesn't limit the range only to corporations. Also, I don't think that it's right to limit personal application range when considering the fact that the above law was legislated for individuals who need to set movables as security object to facilitate their, common people's, finance, and the current situation of company name registration. In conclusion, this study suggests some legislative supplements such as establishment of measures to secure transaction safety, determination on the object as a solution for creditors to collect debts and permission for individuals to use this system in order to enhance effectiveness of the above law.