債權質權의 公示方法에 관한 小考

• 영문명: Announcement Method of Pledge of Rights - Focusing on Impledging of Nominative Claim -
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 김병두(Byung-Du Kim)
• 간행물 정보: 『비교사법』比較私法 제13권 제4호, 263~304쪽, 전체 42쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.12.01

영문 초록

  Pledge right is the collateral developed for tangible assets, but after presentation of securities system that makes public recognition of property and independent exchange value of property right is recognized, pledge of rights targeting property right has occupied some portion of financial transactions. Impledging of nominative claim among property right is expressed as claim for return of rent deposit, deposit claim and claim for work payment. In actual transactions, however, financial institutions avoid impledging because of imperfectness of public announcement method of pledge right. In this regard, claim impledging fails to play a remarkable function compared to other pledge right targeting other property right. Difficult problems appear since legal principle of pledge right with transfer of occupation as requirement cannot be applied to the claims without public announcement as it is.
  With regard to this, it is logical that right of claim is established with agreement of real right as semi-occupation of claim is recognized and principle of requirements for setting up against change of real right is adopted in Japan, however, it is required to have agreement on real objects in order to complement this since it makes disposition of pledge setter difficult and notice to or approval of the 3rd debtor was incomplete or insufficient as a requirements for setting up against it.
  It is incomplete and non-exhaustive to adopt the alleviated object-requiring agreement as a method of setting claim impledging. In particular, it is more so in Korea which adopts principle of establishment requirement for change in real right. In the end, method of announcement as a requirement for claim pledge should be identified from separate grounds. If such method of announcement cannot be identified from the meaning of object-requirement agreement itself, the methods of announcement of claim impledging in Korean civil law is the transfer of semi-occupation of claim. Legal ground on this is found in the regulation of Article 355 of Civil Law.
  However, even if we accept the concept of semi-occupation of claim, we cannot conclusively determine whether such semi-occupation can be accepted with which conditions. With regard to this, we can facilitate the safety of transactions since the claim registration system to be explained below may help to determine the period and existence of semi-occupation of claim. In addition, there is a time difference between the preparation of announcement method as a factor of establishment in reality and the preparation of announcement method as requirement for setting up against it. Pledge holder also worry that his pledge may be degraded to the subordinated order due to acquisition of pledge of the 3rd party for such period even if it is a short period. As a factor of harming the safety of transaction, claim pledge is not activated in actual transactions. This problem can be solved by introducing pledge registration system. In particular, registration of claim can be introduced to some financial claims such as claim right for return of rent deposit and credit trade receivables. Provided, however, that it may not be required to utilize claim registration system since bank system can manage the bank deposit claim even if claim registration is not performed as shown in the case of USA.

목차

Ⅰ. 序論
Ⅱ. 현행 민법상 債權質權의 公示方法
Ⅲ. 민법개정안에서의 채권질권의 공시방법
Ⅳ. 결론
【참고문헌】
【Abstract】

키워드

지명채권입질의 공시방법 권리입질의 공시방법 제3채무자에 대한 대항요건 채권의 준점유 채권등록 Announcement Method of Pledge of Nominative Claim Announcement Method of Pledge of Rights Notice to or Approval of the 3rd Debtor Transfer of Semi-occupation of Claim. Registration of Claim