美國의 浮動擔保制度-우리나라의 擔保法制에 대한 示唆點-

• 영문명: The Floating Charge in the United States
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 박훤일(Whon-Il Park)
• 간행물 정보: 『비교사법』비교사법 제10권 4호, 177~204쪽, 전체 28쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.12.01

영문 초록

In a common law country, a debtor may grant a floating charge over all the assets or inventories without identifying the objects. If a debtor company is obliged to obtain the consent of a secured creditor for the use and disposition of the collateral, it would hinder the company in securing funds and doing business. Since an English court acknowledged a floating charge, which had been granted by a debtor in the ordinary course of business, in a 1870 case, it seems to have been efficient collateral in corporate financing. On the contrary, in the United States, the Supreme Court rendered a floating charge invalid or fraudulent in Benedict v. Ratner, 45 S.Ct. 566 (1925) by reason of liberty in the debtor to dispose of the collateral without being required to account for proceeds or substitute new collateral. But, when the Uniform Commercial Code was enacted in all the states, Sections 9-204 and 9-205 of Article 9 repealed the rule of Benedict v. Ratner. As a result, under UCC Article 9, a security interest in after-acquired property has equal status with that in collateral in which the debtor has rights at the time value is given under the security agreement. Section 9-204 accepts the principle of a continuing general lien in that collateral may secure future advances as well as present advances when the security agreement so provides. The creditor usually demands the debtor should covenant the disposition of collateral in the ordinary course of business. Otherwise, the debtor is required to obtain the prior consent of the creditor for any other use or disposition of the collateral. In case of breach of such covenants, the creditor may declare the event of default on the part of the debtor. This article explains the relevant provisions of UCC Article 9, eligible properties as collateral and appropriate notice filing for a floating charge, probable competition with other claims of the same creditor, the conflicting provisions of the Federal Bankruptcy Code, 11 U.S.C. §552 on the occasion of bankruptcy of the debtor. In the aftermath of the banking crisis in 1997, highly sophisticated financial products and arrangements originating from the Wall Street have been imported into Korea. The so-called collateral in business properties, like floating charges in the United States or England, is attracting the attention of policy-makers because such collateral system could ensure the enlarged availability of funds to the small and medium-sized enterprises in Korea. In the last chapter, the writer asserts that widely used financial transactions like asset-backed securitization (ABS) and receivables financing employed by big companies against their suppliers would usher in the new dimension of financing in Korea. In these transactions, the borrower or debtor has to file their financing plan with the relevant filing office, i.e., the Financial Supervisory Commission or the Korea Financial Telecommunications and Clearings Institute. In order to achieve the purpose of public notice with appropriate legal effects, such filing should be processed by the registration offices under the Judiciary Branch, which has already computerized the whole corporate filings. In this regard, the modernization and diversification of the collateral system in Korea should be promoted so as to implement the security interest on moveables and receivables. Then we can propose to the North Korea a modern collateral law in line with other transition economies.

목차

Ⅰ. 머리말

Ⅱ. 미 통일상법전의 관련규정

Ⅲ. 우리나라에의 시사점

참고문헌

[ABSTRACT]