동산담보권과 선의취득

• 영문명: Security over Movable Property and Good-faith Acquisition
• 발행기관: 한국민사법학회
• 저자명: 김현진(KIM, Hyun Jin)
• 간행물 정보: 『민사법학』제56호, 3~53쪽, 전체 51쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2011.12.31

영문 초록

The Act on Security over Movable Property, Receivables, etc. (hereinafter the “Act”) has established a new contractual security right in property with security interest over movable property and has introduced a security registration system. The advantages of security interest over movables are as follows: (i) non-possessory security interest over movables becomes generally possible; (ii) the object of security interests over movables expands to facilities, material and inventory as movables to be obtained in the future may be registered and individual movables or collective movables may be specifically registered (iii) the utilization of the value of the collateral may be maximized as the security interest provider is allowed to create a subordinated security interest over the same collateral, ; (iv) the legal relationship becomes clear as interested parties to the collateral may easily verify the existence and contents of a security interest by examining the security registry; and (v) agreements on foreclosure are allowed and the security interest may be enforced extra-judicially pursuant to statutory process upon showing just grounds. The function and effectiveness of registration of security interests has characteristic as follows, in comparison with that of real property. Firstly, the security interest registry is filed by security interest providers. Secondly, the registration of the security interest over movables is a criterion for constituting security interest. Thirdly, the security interest registry merely records the creation, discharge and amendment of the security interest and therefore the acquisition, transfer of the ownership to the collateral are not recorded therein. This characteristic gives rise to discussions as to the influence that a transfer of collateral has on the registration of security interest. With regards to the overtaking right of a security interest, a purchaser may obtain ownership free from security interest if he has been granted the authority of disposal from the secured creditor or has acquired ownership through good faith acquisition. The Act provides Good-faith acquisition of ownership and pledge in encumbered asset. In relation thereto, there is a need for an interpretive theory on good faith acquisitions and an introduction of a concept of disposition in the ordinary course of business as a theory of legislation is also necessary. In conclusion, the author suggests that Good-faith acquisition of a security right in encumbered asset would be prescribed with comparative analysis.

목차

Ⅰ. 서론

Ⅱ. 동산담보권과 담보등기

Ⅲ. 담보목적물의 처분의 효과에 관한 비교법적 고찰

Ⅳ. 담보목적물의 처분과 선의취득이 문제되는 구체적 사안의 검토

Ⅴ. 결론

참고문헌

키워드

동산·채권 등의 담보에 관한 법률 동산담보권 담보등기제도 인적편성주의 추급효 선의취득 미국 통일상법전 제9편 유럽 공통참조기준초안 Act on Security over movable property receivables etc. security registration system security interest over movable property the overtaking right of a security interest good-faith acquisition UCC Art. 9 DCFR