미국 U.C.C. 하에서의 진정 리스와 리스가장 금융거래의 구분

• 영문명: Distinction Between True Lease and Finance Transaction Disguised as Lease Under the American U.C.C.
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 정봉진(Bong-Jin Chung)
• 간행물 정보: 『비교사법』比較私法 제14권 제1호, 563~592쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.03.30

영문 초록

  In America, Uniform Commercial Code (“U.C.C.") Article 2A promulgated in 1987 and revised in 1990 deals with personal property leasing transactions. Article 2A applies only to leases. If the so-called lease is really a secured transactions disguised as lease, Article 2A does not apply. Instead the transaction is governed by Article 9. An agreement purporting to be a “lease" of goods is not necessarily a true lease governed by Article 2A of the U.C.C. Instead, the law might view the agreement as a security agreement. The distinction between a true lease and a lease creating a security interest depends upon definition of “security interest" given in U.C.C. Section 1-201(37). A so-called lease that falls within that section"s definition of “security interest" will not be regarded as a true lease. The distinction between a lease and a security interest is one of the most frequently litigated issues under the entire U.C.C. Under U.C.C. Section 1-201(37), “[w]hether a transaction creates a lease or security interest is determined by the facts of each case." The distinction between a lease and a security interest is specially important in the context of the Bankruptcy Code. Determination of whether a lease is a true lease or a secured transaction in bankruptcy requires analysis of the definition of “security interest" provided for in U.C.C. Section 1-201(37). In brief, the focus of the analysis is to determine whether the parties to the lease expected that any significant value would remain in the leased property for return to the lessor at the end of the lease term. U.C.C. Section 1-201(37) sets forth a two-part test which, if satisfied, has been held to mandate a finding of a secured transaction. The first part of this test seeks to determine if the lease is terminable by the lessee (namely, whether it contains a so-called “hell or high water clause"), and the second part seeks to prove what residual value, if any, was expected by the parties to remain at the end of the lease term. Where a lease provides for a purchase or renewal option, this test will require consideration of whether the price to be paid for its exercise is so “nominal" as to render it a sham, thus serving as evidence that the parties intended to enter into a disguised financing.

목차

Ⅰ. 서론
Ⅱ. 미국 U.C.C. 제2A조 개관
Ⅲ. 미국법상 진정 리스와 리스가장 금융거래 구분의 중요성
Ⅳ. 진정리스와 리스가장 금융거래의 구분 기준
Ⅴ. 결론 - 우리 법과의 비교
【참고문헌】
【Abstract】

키워드

리스 리스업자 리스이용자 금융리스 진정리스 통일상법전 제2A조 동산담보권 파산 Lease Lessor Lessee Finance Lease True Lease U.C.C. Article 2A Security Interest Bankruptcy