채권양도 및 채권질권의 대항요건 - 담보등기제도 등에 대한 외국의 입법례 비교 분석 -

Abstract

Under the Korean Civil Code, the assignment of a receivable is not perfected against third parties, including the insolvency representative, unless the assignor gives notice of the assignment to the debtor of the receivable or the debtor consents to the assignment. Such notice or consent must be by means of a certified document with a fixed date stamp in order for the assignment of the receivable to be perfected against third parties. This regime intends to designate a debtor as an information centre, so that a potentially interested party may inquire of the debtor of the receivable regarding notice of an assignment. Priority among competing assignees is determined by the order in which the debtor receives notice of the assignment. There are exceptions to the Civil Code: the ABS Act and the MBS Company Act. Under the ABS Act and the MBS Company Act, a SPV can perfect an assignment of receivables against third parties by filing the securitization plan and the assignment of receivables in accordance with the plan at the Financial Services Commission. Upon filing the assignment of receivables in accordance with the securitization plan at the Financial Services Commission, the perfection requirement under Article 450(2) of the Korean Civil Code will be deemed satisfied. Under the Korean Civil Code, the method of creating a pledge of a receivable is to transfer the receivable. A pledge of a receivable becomes effective by the method of the assignment of a receivable. In order to perfect a pledge of a receivable against third parties, a pledgor is required to give notice of the pledge to, or receive consent from, the debtor of the receivable regarding the creation of the pledge. The notice must be by means of a certified document with a fixed date stamp. Korea enacted the Korean Security Registration Act in order to provide a registration system for security rights in movable assets and receivables. This Act entered into force on 11 June 2012. The Korean Security Registration Act covers security rights in and security assignments of receivables, but does not cover outright assignments of receivables. The Korean Security Registration Act creates a new form of security interest guaranteed by registration in addition to the pledge under the Korean Civil Code. It does not replace the notification requirement for a pledge of receivables under the Korean Civil Code. Pledges coexist with security interests under the Korean Security Registration Act. Priority is determined by the order of notification of pledges under the Korean Civil Code or registration of security interests under the Korean Security Registration Act. As a result, parties may choose to use either a pledge of receivables under the Korean Civil Code or a security interest in receivables under the Korean Security Registration Act. If parties choose to use a pledge of receivables under the Civil Code, notice of the pledge to the debtor by means of a certified document with a fixed date stamp is required for perfecting the pledge against third parties. If parties choose to use the security interest under the Korean Security Registration Act, they may perfect the security interest against third parties by simply registering it. In total, with respect to receivables, there could be assignments or pledges under the Korean Civil Code, security interests under the Korean Security Registration Act, or securitizations under the ABS Act or the MBS Company Act. The person who completes any one of perfection methods first will have priority. Priority between competing assignments of, pledges of or security interests in receivables is determined by the order of notice of assignments or pledges to (or consent of) the debtor of the receivable under the Korean Civil Code or registration of the security interest under the Korean Security Registration Act. In addition, for the assignment of receivables in accordance with a securitization plan, upon filing the assignment of receivables at the Financial Services Commission of Korea, the perfection requirement under the Korean Civil Code will be satisfied. Thus, priority is determined by the order of notice to the debtor, filing at the Financial Services Commission or registration under the Korean Security Registration Act. As a result, to make sure there is not any prior assignee or any prior secured creditor of the receivable, a potential assignee of a receivable should (1) ask the debtor of the receivables whether he received notice of a prior assignment or security interest; (2) check the securitization filing registry at the Financial Services Commission of Korea; and (3) check the security registry for receivables under the Korean Security Registration Act. This Article proposes to enlarge the scope of application of the Korean Security Registration Act to include the assignment of receivables, and abolish the ABS Act and the MBS Company Act.