동산⋅채권 담보등기제도와 선의취득에 관한 비교법적 고찰 영미법을 중심으로

• 영문명: Comparative Analysis on Security Interests Registration Systems and the Bona Fide Purchaser: with English Law and the U.S. Law
• 발행기관: 한국민사법학회
• 저자명: 전우정(Woo-jung JON)
• 간행물 정보: 『민사법학』제73호, 111~159쪽, 전체 49쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2015.12.31

영문 초록

Where a debtor provided a security interest in his movable asset for his creditor and registered the security interest and subsequently transferred the movable asset to a bona fide purchaser, who would have the priority between the registered creditor and the bona fide purchaser? If a registered security interest in a movable asset might become unperfected after the movable asset is transferred to a bona fide purchaser, the validity of a security interest were to be invalidated and terminated by any subsequent transfer. Then, the security interest in the movable asset could not be protected. If a bona fide purchaser would be burdened the obligation to search the security interest registry, a bona fide purchaser of the movable asset would take the movable asset subject to the security interest of the creditor previously registered because the bona fide purchaser did not fulfill his obligation to search the registry. If so, the registered security interest in the movable asset would continue to be perfected even after the movable asset is transferred to a bona fide purchaser, and the creditor would be protected against a bona fide purchaser. Where a debtor transfers its movable asset to a bona fide purchaser and the bona fide purchaser transfers the movable asset to another third party, how far a registered security interest in a movable asset should continue to be perfected after the movable asset is transferred again and again to third parties away from the original debtor? In such situation, how can a bona fide purchaser know that the movable asset is subject to a creditor’s security interest? This problem has its origin in the debtor (or security provider) - indexed registration system, under which a would-be purchaser can only search the registry upon the name of a debtor (or security provider). If a potential purchaser would have the obligation to search the security interest registry against only the direct counterparty but not against the transferor of the transferor, the third party takes the movable asset free of any security interests registered against the original debtor. If so, registration of a security interest might lose its effectiveness after two consecutive transfers of a movable asset. Under English law, once a person, who does not have actual or constructive notice of a prior security interest, provides value and acquires a movable asset, takes priority over the secured creditor of the prior security interest. This doctrine is often called the bona fide purchaser rule. Under U.C.C. Article 9 and the PPSAs of Canada, Australia and New Zealand, where the selling is in the ordinary course of the seller s business a buyer in the ordinary course of business takes free of a security interest created by the seller, even if the security interest is registered and the buyer knows of its existence. Thus, a secured creditor who registered his security interest could be subordinated to a buyer in the ordinary course of business from a seller in the business of selling goods of that kind. In Korea, a bona fide purchaser could be protected by the bona fide purchase provision of Article 249 of the Korean Civil Code if the purchaser was unaware of the registration of prior security interests for good cause in the ordinary business of the purchaser.

목차

Ⅰ. 서론

Ⅱ. 동산·채권 담보등기제도

Ⅲ. 동산·채권 담보등기부 조회의무와 담보물 선의취득의 관계

Ⅳ. 담보목적물의 이전(以前) 소유자에 대한 담보등기부 조회의무

Ⅴ. 양도담보의 문제점

Ⅵ. 결론

키워드

동산⋅ 채권담보등기 통지등기(notice filing system) 인적편성주의 등기제도 선의취득 등기의 추급력 등기부 조회의무 의제통지(constructive notice) 통상의 영업과정(ordinary course of business) 이중의 설정자 문제(double debtor problem) 양도담보 security interest registry notice filing system debtor (or security provider)-based registration system bona fide purchase Nemo Dat Quod Non Habet rule obligation to search the registry constructive notice ordinary course of business double debtor problem fiduciary transfer of title for security purposes