채권질권의 실행

Abstract

In principle, the pledge right on a claim(bond) is established according to the method of transfer of the claim. If the pledged claim is a registered bond(with a named obligee), it is necessary to be perfection under Article 450 of the Korean Civil Code so that the pledgee asserts her(his) right against the obligor and the third party. The pledgor and the obligor should not perform such actions as changing or extinguishing the pledged claim without the consent of the pledgee. In addition to the compulsory execution stipulated in the Civil Execution Act, the pledge right on a claim can be executed with the direct right of execution by Article 353 of the KCC. If both the pledgee's claim and the pledged claim have become due, the pledgee in one’s name may directly collect the pledged claim against the obligor under the limit of the one’s claim. Thus, the pledgee is able to perform all necessary actions against the obligor to gain the satisfaction of the claim, and has the right to receive the obligor's repayment directly. The pledgee is allowed to subrogate the termination right of the contract based on the pledged claim. In addition to, the pledgee may set-off the pledgee's claim with the pledged claim, the obligor and the pledgee are the same. However, in some cases, the set-off against the claim prohibited to be seized is not allowed, in the case that the claim created by the termination of the contract based on the pledged claim as part of the direct execution. If the pledged claim has become due earlier than the pledgee's claim, the pledgee can not yet execution its claim directly against the obligor. The pledgee may request the obligor to deposit the amount payable with the Court Depository. In such case the pledge shall exist over the money so deposited. It is allowed to execute directly if the object of the pledged claim is a thing other than money, the obligor’s feasance or nonfeasance. The pledgee asks to commence of the compulsory execution to the execution court by submitting a document attesting the existence of such pledge right, and the compulsory execution procedure shall be commenced by an order of seizure issued by the court. It is not reasonable to assume that an order of seizure is not necessary when executing the pledge right on a claim only for the wording of Article 273(1) of the CEA. It is not very significant for the retainable effect in the pledge right on a claim, and the preferred repayment is the core of the right. Also, the execution of the pledge right on a claim is an area in which a wide variety of legal issues are raised as a result of the overlap between the KCC and CEA. Consequently, it is necessary to clearly establish the specific procedures and legal reasoning for each type of the pledge to enable the pledgee’s preferred repayment.