자산유동화와 진정한 매매의 법리

• 영문명: A Critical Legal Aspect of the True Sale in the Korean Asset-Backed Securitization Act
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 윤부찬(Bu-Chan Yoon)
• 간행물 정보: 『비교사법』比較私法 제14권 제3호(하), 1041~1078쪽, 전체 38쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.09.30

영문 초록

  Last 1998, the Asset-Backed Securitization Act (hereinafter ABSA) was enacted in Korea. One of the most important legal issues in the ABSA must be the legal aspect related to the true sale in the obligation. The true sale is designed to prevent the obligation transferred to the special purpose vehicle (hereinafter SPV) before the bankruptcy of the transferor from being considered a sale of the obligation even though the transferor after the transfer of the obligation went into the bankruptcy. Moreover, the true sale stems from the American legal system based upon the case law and is provided in the article 13 of the ABSA. Such a sale of the obligation is not considered as a secured sale where the sale meets the requirements of the article 13 of the ABSA as follows: (1) the transfer concerned is performed by means of a sale or an exchange (2) interests or rights of the transferred asset belong to a transferee (3) a transferor does not have any recourse to the transferred asset while a transferee also does not have any recourse to the equivalence for the transferred asset and (4) a transferee takes the risk related to the ABS transferred by a transferor.
  The piece points out several draw backs in the true sale of the article 13 of the ABSA as follows: First, because several concepts such as the true sale, interests and risks, are not embodied in the article 13 of the ABSA, such problems cannot improve the efficacy for the article 13 of the ABSA.
  Second, there is not any precedent in Korea which courts considered the true sale as a secured sale.
  Third, even though, in order for a transaction to be a secured transaction in Korea, such a transaction has to satisfy two requirements such as the ‘existence’ of the obligation based upon a security and the ‘transfer’ of the property secured for the obligation, there are not such requirements in the ABSA for the true sale. In this sense, the true sale of the American legal system does not consist with that of the Korean legal system.
  Forth, the article 13 of the ABSA frustrates the efficacy and diversity for the asset-backed securitization in that the recourse in the article 13 of the current ABSA for the true sale is not almost accepted.
  Therefore, the author recommends that the article 13 of the current ABSA be amended as the ‘safe harbor,’ which a transaction is not considered as a secured transaction in the bankruptcy code when the asset concerned is transferred to an eligible entity.

목차

Ⅰ. 서론
Ⅱ. 미국에서의 진정한 매매의 법리
Ⅲ. 우리나라의 자산양도시 진정 매매
Ⅳ. 결론
【참고문헌】
[Abstract]

키워드

진정한 매매 채권양도 도산 파산 도산절연 자산유동화 True Sale Sale of Loan Bankruptcy Bankruptcy Remoteness Asset Backed Securities