營業擔保의 法理에 관한 考察

Abstract

There is an amounting concern in Korea that the present charge system under which the debtor, can not dispose of the charged assets in the ordinary course of business without the consent of the creditor, the chargee, should be subject to reform. The general nature of the floating charge is some or all of the company's present and future property which leaves the company free to deal with the property subject to the charge in the ordinary course of business. Such a charge is, therefore, a particularly valuable means whereby a business concern can raise money without removing any of its property form the business. Also, it facilitates the granting of security over assets which in the normal course of a company's business are circulating. The charge remains floating and the company free to use the assets subject to the charge until the charge is converted into a fixed charge. This is referred to as the crystallisation of the charge. The normal crystallising event is the taking of steps to enforce the charge but there are others and these will be dealt with later. The floating charge holder will take the company's property subject to the rights of anyone claiming by title paramount. However, once the floating charge crystallises, this effects an assignment of the assets subject to the charge with the result that the assets are no longer those of the company.