건조중선박에 대한 양도담보권의 성립과 관련한 법적 쟁점

Abstract

When a Korean shipbuilder enters into a shipbuilding contract with an overseas company, a local financial institution issues a refund guarantee for the shipbuilder and secures collateral by acquiring transfer-security interests (Yangdo Dambo, a type of non-statutory security under Korean law). In case the shipbuilder fails to fulfill its obligations under a shipbuilding contract, the financial institution must recover its bonds as a security right holder. This article analyzes a case regarding the objection to the rehabilitation trial initiated by the financial institution. First, the shipbuilder presented an argument to deny the financial institution’s status as a security right holder in a rehabilitation trial. The said argument was accepted in the rehabilitation trial and the financial institution moved to file an objection. Thereafter, during the case regarding the objection to the rehabilitation trial, the court reversed the previous decision in the rehabilitation trial and fully recognized that the security of the financial institution were established. In light of the above, this paper analyzes legal issues related to the establishment of transfer security interests on a vessels under construction are reviewed, such as the reason why transfer security interests are mainly established in practice, the feature of refund guarantee, and governing law on the establishment of property rights. In addition, the logic of the court’s recognition of the establishment of security in the subject judgment will be scrutinized. In conclusion, the paper will emphasize that the subject judgment is reasonable in light of the common practice and legal principles, and that the domestic shipbuilding industry should peruse the said judgment in order to establish a sound practice in relation to the formation of the shipbuilding contract.