UNCITRAL의 「담보거래에 관한 입법지침 초안」논의

• 영문명: Discussion on the UNCITRAL"s Draft Legislative Guide on Secured Transactions
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 金載亨(Jae-Hyung Kim)
• 간행물 정보: 『비교사법』比較私法 제13권 제4호, 41~82쪽, 전체 42쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.12.01

영문 초록

  Globalization and rapid growth of information and communications technologies has increased both complexities and interdependence in global commercial transactions. It is generally felt that the current commercial laws are inadequate and needed to be modernized and harmonized in order to facilitate commercial transactions in the midst of the increase in trade and investment flows between countries and the rising complexity of commercial transactions and technology.
  Recently, at its thirty-ninth session, held in New York on 19 June to 7 July 2006, the United Nations Commission on International Trade Law (UNCITRAL) approved principle of the key objectives and major policies of a draft legislative guide on secured transactions, and adopted revised legislative provisions on interim measures of protection. The purpose of the guide is to provide a legal framework that promotes access to low-cost secured credit. The text will address security rights in movable property, including inventory, equipment, receivables and other types of assets. The recommendations approved by the session include key objectives and scope of application, basic approaches to security, creation of the security right and effectiveness of the security right against third parties and registration. Other recommendations cover issues such as insolvency, acquisition, financing devices, conflict of laws and transitional arrangements.
  Although the guide is still in the draft stage, it is perceived to provide a reasonable guideline for secured transactions based on extensive comparative studies. Korea has participated in preparing the draft guide as a Member State. It is, therefore, necessary to examine whether the UNCITRAL"s Guide, once completed, can be adopted in Korea.
  The draft legislative guide on secured transactions contains some recommendations that are too patently different from the basic approach of Korean civil law to secured transactions so as to be adopted, yet it provides some insightful and challenging information and advice. For instance, the draft guide provides for creation of the security right on moveable properties, receivables and other types of assets, and effectiveness of the security right against third parties through registration. I have previously argued for the adoption of a registration system for the security interests on moveable properties in Korea. Similarly, I believe that the same registration system should also be adopted for the security interest created on receivables. The draft guide would offer useful information to design such a system. It should also be noted that the draft guide recommends the comprehensive rules on the broad use of movable properties and receivables as collateral. Furthermore, the idea that restrictions on the types of assets that can be used as security do not promote the rights of not only the secured parties but also the debtors, nor facilitate transactions provides an impetus to review the current secured transaction law in Korea.

목차

Ⅰ. 서론
Ⅱ. 주요 목적과 기본적 접근방법
Ⅲ. 적용범위
Ⅳ. 담보권의 성립
Ⅴ. 담보권의 제3자에 대한 효력
Ⅵ. 등록제도
Ⅶ. 결론 - 비교와 시사
【참고문헌】
【Abstract】

키워드

UNCITRAL 유엔국제거래법위원회 담보권 담보거래법 담보신용 담보거래에 관한 입법지침 동산 채권 비점유 담보 등록 등기 Draft Legislative Guide on Secured Transactions United Nations Commission on International Trade Law Secured Credit Security Right Secured Transaction Movable Property Receivables Registration Non-Possessory Security Right