유동집합동산 양도담보의 권리 행사 관련문제점 및 개선방안에 대한 연구

Abstract

Transfer for Security occurs due to transactional needs of small and medium-sized business short of capacity of providing security, and which is recognized by court. Transfer for Security has a merit guaranteeing possession and using right of debtor with enhancing debtor credit. However it has a discordance, i.e. formality of transfer of ownership with a substance of a security, and as a result of that, several complex legal matters happens among relevant parties. Especially there are several legal questions, e.g. how to see collected item as a subject of security in terms of the rule of a property corresponds to a right in the context of our civil law system, how to recognize it as a transfer of ownership or charging security, how to describe the collateral, whether to accept such an incomplete method of public notice. Now a new act, “ACT ON SECURITY OVER MOVABLE PROPERTY, CLAIMS, ETC.” took effect as of June 11th, 2012, which is intended to compensate the complex legal structure and the corresponding problems regarding enforce of such security, however there is not as much achievement as expected. So it is necessary to analyze the previous discussion regarding transfer for security over floating aggregate movables among the parties, e.g. double charging of transfer for security over moveable assets, a matter of absence of legal right to charge, scope of transfer for security over asset owned by third party, apposing power against a lien holder, security value maintenance, collecting debts in the course of court auction. In essence, transfer for security over floating aggregate moveables is similar to business security or floating charge, so to accept business security scheme would be one of option to replace a transaction needs of transfer for security over floating aggregate moveables. In terms of the fact that the subject of security is unfixed, and debtor has a right to dispose moveable assets as a subject of security until event of default occurs, the business security or floating charge have some common features with transfer for security over floating aggregate moveables. However we should take systematic consistency into account, because it means a partial acceptance of common law system toward civil law system. So, in the short term, we need to use a notarial/authentic document/deed etc. to compensate unclear public notice system, and to create penalty clause regarding violation of legal relationship clarification duty of security provider. In terms of operation of law, partial recognition of double transfer for security over same moveable asset, partial recognition of criminal penalty on security provider’s disposal, and acknowledgement of security value of creditor/security holder would be needed. Recently, our government proposed revision of “ACT ON SECURITY OVER MOVABLE PROPERTY, CLAIMS, ETC.”, whereby setting up a bundle of security rights over several kinds of subject. It would be one of a short term solution that we could make the best use of our current security system.