전자등기 검색상의 문제점과 해결방안

• 영문명: How to Overcome the Name Errors in a Newly Proposed Personal Property Filing System in View of the Recent U.S. Case
• 발행기관: 경희법학연구소
• 저자명: 박훤일(Park, Whon-Il)
• 간행물 정보: 『경희법학』제42권 제1호, 267~286쪽, 전체 20쪽
• 주제분류: 법학 > 민법
• 파일형태: PDF
• 발행일자: 2007.03.30

영문 초록

Now the Korean government is pursuing a new collateral system based on personal properties possessed by small companies. In view of the same kind of collateral system employed by the United States and Japan, the electronic filing seems to be inevitable in Korea. When a creditor is going to advance in reliance on corporate assets, he wants to know through the computer and the Internet the applicant debtor has granted to whom which property as collateral. If the data was mismatched with the search item or the searcher misspelled the search word, the searcher would be surprised to see other senior creditors prevail over himself with respect to the collateral. More often than not, we usually find ourselves in mistaking A Company for B Company. Sometimes the companies which changed their names on account of mergers and acquisitions, or corporate identity projects increasingly caused such mistakes and errors made by the public. This article explains the UCC Article 9 filing system of the United States. Of course, the American collateral and filing system is quite different from that of Korea. But the U.S. system has accumulated plentiful cases and experiences with respect to the filing system, which could be learned and shared by Korean legislators and lawyers regarding similar cases. In his recent article, Professor Lynn LoPucki described the Spearing Tool decision of the Sixth Circuit in June 2005 as a disaster. He stressed that the decision eviscerated the debtor name error elimination project, on which scholars, Article 9 drafters and state filing officers collaborated for years, by holding a notice of tax lien filed in the Article 9 filing system to be effective even though it did not comply with Article 9 s exact, correct name requirement. In accordance with the Article 9 filing system, a holder of the prior security interest provides notice to subsequent potential creditors by filing a financing statement. If a search by the debtor name produces some results of security interests with priority, the searcher would decline to advance or require different terms of the loan. But if the debtor s name is spelled incorrectly in either the financing statement or the search request, the searcher could obtain a wrongful information. However, the Sixth Circuit concluded that conducting a single search in the exact, correct name of the debtor under the current Article 9 filing system was not reasonable and diligent because the IRS s notice on tax lien of the debtor name using & and abbreviations is common. Here in Korea, we can expect the debtor name errors could undermine the new non-real estate collateral system because the newly adopted electronic filing system is not error-proof. Furthermore, under the civil law system, any error or mistake concerning the asset to be identified and secured would jeopardize the whole collateral system. In this regard, a sophisticated searching method employing artificial intelligence or ontology could be advisable. Take an example of POSCO which officially changed its name from Pohang Iron and Steel Manufacturing Corp. When a user inputs Pohang Iron and Steel or something like that, the searching window would complete automatically the searching word like POSCO in an exact and proper manner. Likewise, if the RFID tag is attached to or embedded in each personal property to be granted as collateral, the required information with respect to the debtor and creditors already stored in the RFID tag could be transferred to the electronic registry of the filing office. There could be no error or mistake regarding the identity of collateral. At present, a useful technology has been devised and patented in Korea for the purpose of secured transactions.

목차

Ⅰ. 문제의 제기

Ⅱ. 미국에서의 전자등기 검색상의 문제

Ⅲ. ‘스피어링 툴 사건’의 파장

Ⅳ. 우리나라에 주는 시사점

Ⅴ. 결론 - 가능한 해결방안

키워드

동산담보제도 공시 전자등기 미국 통일상법전 조세담보권 부동담보 전자태그 movable collateral system public notice electronic filing/registration Uniform Commercial Code (UCC) tax lien floating charge radio frequency identification (RFID)