채권담보제도의 현대화 -DCFR과 우리나라의 채권담보제도의 비교를 중심으로-

Abstract

The discussion on the modernization of the law governing security over receivables started from the rediscovery of the value of receivables as collateral coupled with the efforts to redesign a security system that could maximize the use of existing or future receivables as collateral. In this connection, the main objectives of the modern secured transactions law shed light on how to reform the secured transactions law: modern secured transactions law should, inter alios, adopt a general registration system for security interests over personal property (i.e., movable assets, receivables, investment property), establish clear and predictable priority rules among competing security interests and allow debtors to use existing or future assets as collateral. In Korea, the Act on Security over Movable Property and Receivables, etc. (the 'Act') was enacted in 2010 to modernize the security system over movable assets and receivables, etc. and became effective in June 2012. The Act is revolutionary in Korea and includes the main features of a modern secured transactions law, such as the introduction of a general registration system for security interests in movable property and receivables, the establishment of priority rules among competing security interests and the permission of collateralization of future assets. A closer examination of the Act, however, reveals certain limitations of the reform of the secured transactions law: First, the Act takes a functional approach in dealing with security interests but fails to abolish existing security interests, such as pledge (Jil Kwon) and assignment for security (Yangdo Dambo), under the Civil Code of Korea. It seems fair to say that the newly adopted security system over movable property or receivables in Korea is currently undergoing a period of transition while moving towards a unitary security system. Second, the Act only contains four provisions that specifically deal with security interests over receivables and those four provisions are not sufficient to provide a comprehensive framework and specific rules for such security interests. Third, the Act only permits corporations and persons with registered trade names to engage in secured transactions using receivables as collateral under the Act and therefore, fails to establish it as a type of security interest available to the general public. Nevertheless, the enactment of the Act is a meaningful first step in modernization of the secured transactions law in Korea. Some of the issues mentioned above are still unresolved, but, as usual, true reform of the law is expected to take place gradually, with changes in practice preceding or following the statutory reform. Accordingly, the reform of the secured transactions law should be continued in order to achieve an efficient security system which is in harmony with general principles of the Civil Code of Korea.