파산법상 동산담보권자의 지위에 관한 연구- 도산절차 개시 전과 후의 동산담보권의실행방법 비교를 중심으로 -

Abstract

Korean insolvency law recognizes the rights of secured creditors to have a priority for satisfaction of their claims from the assets securing their claims. Security over movables or security over receivables (the "Security") under the Act on Security over Movable Property and Receivables, etc. (the "Act") has a priority under the bankruptcy procedure and secured creditors may enforce their security outside the bankruptcy procedure. In this sense, the commencement of the bankruptcy procedure does not affect the rights of secured creditors. On the other hand, the commencement of rehabilitation proceedings affects rights of secured creditors. First, the Security established before the commencement of rehabilitation proceedings is treated as a rehabilitation security under the Korean insolvency law and secured creditors are not able to enforce their Security outside the rehabilitation proceedings. Second, upon commencement of rehabilitation proceedings, a security over future assets (i.e., future receivables or after-acquired movables) turns into the security over the assets existing as of the commencement of the rehabilitation proceedings. The Supreme Court decision on March 28, 2013 (2010da63836) ruled that receivables of the estate acquired after the commencement of rehabilitation proceedings are not subject to Yangdo Dambo over collective future receivables, created by the debtor before the commencement of the rehabilitation proceedings. This Supreme Court decision was rendered on Yangdo Dambo over collective future receivables, but the legal theory thereof will also apply to other security over future assets under the Act. Accordingly, movables or receivables of the estate acquired after the commencement of rehabilitation proceedings are not subject to security rights over future assets under the Act created by the debtor before the commencement of the rehabilitation proceedings.