동산담보등기의 효력과 선의취득

Abstract

The security interest over movables created by 「the Act on Security over Movable Property, Receivables, etc.(hereinafter the “Act”)」 has security interest registration system. It is conceived that the security interest registry has the effect of alteration, consolation and presumption of a right. The security interest registry has limited effectiveness, because it is filed by security interest providers, and merely records the creation, discharge and amendment of the security interest. The Act does not clearly state the regulation for the overtaking right of the security interest over movables, while applying provisions applicable mutatis mutandis of the Civil Act’s good-faith acquisition clause. The purpose and the scope of application of the provisions applicable mutatis mutandis, however, are conflictive. These conflicts are caused by the ambiguousness of the contents of regulation which tried to protect the safety of trading by applying the good-faith acquisition clause of the Civil Act. By looking at the purpose of protecting the secureness of trade, Good-faith aquisition clause of the Act must be applied when a purchaser has a good faith on the security interest on the collateral. The duty of investigation of the security interest registry cannot be generally imposed to every purchaser of the collateral. The effect of presumption of security interest registry is incapable to be applied to the presumption of awareness and fault on the security interest over movables. To be able to secure the effectiveness of the security interest over movables and protect the secureness in trading, it is inappropriate to use modifications on the interpretation of the good-faith acquisition clause which is based on the public confidence of possession. Rather than that, it seems to be appropriate to seek a legislative solution which states the overtaking right of the security interest, while setting a limitation in certain circumstances.