동산채권담보제도의 개선 방안에 관한 연구

Abstract

Secured transactions under the Act on Security over Movable Property, Receivables, etc. (the “Act”) in Korea has accounted for a very small portion of the financial market since the Act became effective in June 2012. However, the volume of the secured transactions has been growing rapidly over the past one year as the government started to implement various policies aimed at revitalizing secured transactions from May 2018. Under this background, this paper analyzed the legal issues disputed in secured transactions under the Act over the past seven years and proposed the reform of the Act. First, The Act only permits corporations and persons with registered trade names to engage in secured transactions under the Act. The Act should be revised to establish it as a type of security interest available to the general public. Second, it is necessary to specify more detailed procedure on public auction or private sale for security interests under the Act. Third, from a comparative law perspective, many states in U.S. enacted statues making unauthorized disposition by the security provider of the collateral criminal. Enactment of such sanctions will further protect the right of the secured creditor. Lastly, it is worth noting that the establishment of an effective and efficient security system cannot be completed without cooperation with the Insolvency Law. The Insolvency Law of Korea should be revised to provide comprehensive rules for the security interests under the Act. Personal property, including movable property, receivables and even intellectual property, have high potential as collateral in obtaining loans. The secured transactions under the Act will be established as a means of financing in the Korean financial market if appropriate government support is made in the early stages.