집합채권양도담보에 관한 약간의 고찰

Abstract

The collective claims security by means of transfer is established in such a way that a number of current and future claims held by the debtor are collectively transferred to the secured creditor for the purpose of collateral. The emergence of the collective claims security by means of transfer allows leasing companies or credit card companies who have had difficulties in financing due to insufficient physical assets to set up collateral to raise funds more effectively by using multiple claims. However, there is an inherent problem of conflicting substance and appearance in that the collective claims security by means of transfer is a type of security by means of transfer. And various disputes are being raised due to the nature of the transfer of claims, for which the disclosure system is incomplete. The judicial precedent is that for the transfer of future claims, it must be possible to identify the claims at the time of transfer and it must also be probable that the claims will actually occur in the near future. However, the issue of transfer of future claims should be judged as a matter of identification of the claims to be transferred since it is reasonable that the parties relevant to the transaction bear the risk that the claim will not occur in reality, unless there are circumstances such as a violation of public order and good morals. It is sufficient to be able to distinguish future claims from other claims through the cause or period of the claims, and to confirm whether or not the security by means of transfer has an effect on the claims in the future. However, as long as the collective claims security by means of transfer is established through the transfer of claims, the requisite for setting up the assignment of claims required by the Civil Act must be met. But, due to the nature of the transaction, there are cases in which the third debtor does not exist or the third debtor cannot be predicted at the time the collateral is established. In this case, there is no subject who can receive the notice of transfer of claim or accept the transfer of claim, so it is difficult to realistically meet the requisite for setting up the assignment of claims under the Civil Act. It is necessary to prepare a disclosure system such as the registration system of transfer of claims since these problems can hinder the activation of the security for claims or the securitization of claims. On the other hand, according to the judicial precedent, future claims arising after the commencement of rehabilitation proceedings for the debtor are not included in the subject matter of security by means of transfer, and as a result, the right to the security by means of transfer has no effect on the relevant future claims. However, as a result of examining the causes of the claims in detail, even if claims arise after the commencement of the rehabilitation proceedings, it is reasonable to consider that the security by means of transfer has the effect on the claims as an exception in the case of the claims made only after the commencement of the rehabilitation proceedings, in a state in which all the basis for the issuance of claims has been prepared before the commencement of the rehabilitation proceedings. Ultimately, whether or not the claims arising after the commencement of the rehabilitation proceedings are included in the collective claims security by means of transfer may have a considerable impact on stakeholders depending on the conclusion. In that sense, rather than relying on the specific interpretation of the court in each case, it is necessary to present clear standards to the relevant parties through legislation that can promote equity and harmony among the debtor, creditor, and other interested parties.