『동산ㆍ채권 등의 담보에 관한 법률』의 동산담보의 법률관계에 대한 管見

김병두(kim byungdu) 한국비교사법학회 2011 比較私法 Vol.18 No.2

The recently passed “Law on Securities like Movables, Claims, and so forth” is to create a new “Security Interest” on the movables and the claims, which shall be made public by “Registration”, in order to promote mortgage financing that holds mortgages on the company’s stocks, facilities or account receivables. In accordance with the contents of the Law, the principles of property law are included intact without any special modification and the effect of security right on the movables by expanding the valid range of the real subrogation to the transactions and rentals. (Article 14) However, it might be a problem that the Law fails to notice the fact that the debtor of the movables is still occupying the objects without the security interest under distraint. Thus, it is questionable whether the security interest can replace the right of pledge, chattel mortgage and so forth and become the security interest on the movables in the true sense in the area of company financing, even though the contents of Law on Security Interest are constituted in the way of complying with the civil law. Concretely speaking, the followings look controversial and it is necessary to consider the legal principles of the uniform commercial code in order to cope with such limitations. First, it is suspected if the effect of real subrogation can be properly detected in case that the collaterals are changed into the amount of purchase price for easy disposal. In order to execute the real subrogation, the secured party shall place the account receivables under distraint before the payment for or the transfer of such account receivables. After the amount of purchase price are paid in cash or in the other forms, or transferred into the bank account in the name of security setter, such secured interests become mingled with the debtors’ general properties to lose their specificity. In this case, the right of real subrogation becomes extinct and the security right owner on the movables, at the best, can demand fulfillment of the original liabilities or claim the return of unjust enrichment equivalent to the amount of secured debt against the surety who stood movables security. Without extraordinary measures, it is expected that the right on movable securities will repeat the mistakes of chattel mortgage which is operated in combination with the prohibition of provisional disposition. In the meantime, if distraint are not required in exercising the real subrogation as shown from the argument on revision of the civil law, the effect of security right seems to be able to reach the deposit accounts. Unless the specificity issue on the amount of purchase price mixed into the deposit accounts is properly settled, however, it cannot be said that the effect of security interest reach the deposit accounts. Therefore, distraint is not necessary in exercising the real subrogation against the amount of purchase price and rents before the payment for or the transfer of account receivables and so on is made to the security setter. In this case, the effect of security interest can reach the deposit accounts even after the amount of purchase price is paid into the deposit accounts. It does not differ from that of revision of the civil law. One of the concerns is that the amount of purchase price mingled into the deposit accounts shall be handled in the way of settling the interests of several interested parties including subordinated secured parties, unsecured creditors and so forth while not breaking the frame of “Specificity of the Objects”, which is the basic principal of the Law of Reality. The solution is to acknowledge that the effect of security right reaches the deposit accounts by taking the legal principles of equity law of UCC into consideration. Of the several methods in the equity law above, the most reasonable one is “lowest intermediate balance rule”.

부동산 프로젝트 금융(PF)과 담보

김병두(Kim byungdu) 한국비교사법학회 2012 비교사법 Vol.19 No.2

Real estate project financing appears to be depending more upon contractor’s unconventional mode rather than conventional project financing. Looking around the world, not only this type of project financing is not put in practice except Korea, but also this type, definition or expression is neither recognized or nor understood. Even in USA where project financing began in the earliest age, only collateral based loan exists as a real estate development financing. Of course it is totally up the project owner with his free decision and determination whether to finance his/her real estate project using available collateral. The past experience with certainty of collection/recovery of loan by continuous increase in real estate’s value may not be ignored. Also here, real estate policy that right of primary banks is treated as lower priority than secondary loan agencies is a significant factor. Even so, because there are no fundamental differences between project financing and corporate financing, other than the way of loan contract depending on business process structure, necessity of collateral right is essential for bank, which provide exclusive effect before real estate sales announcement, even if it is project financing. Looking at the present real estate market trend that significantly large portion is not sold after sales announcement, collateral is desperate for banks managing real estate project financing appears to be risky. On the other side, in addition to limit of corporate financing that relying on business owner’s credit and asset, based on potential to create high profit from low investment if management is well structured, demand of real estate project financing in financing trade is significantly high. Development business has been preceded relying on construction companies until these days even though real estate project financing must be managed in balance of market demand and collateral request. Some development projects are stopped due to problems in construction companies’ financial capacities. If this trend can’t further be limit within self-controlled boundary, restructure of project financing for development of residential or commercial real estate may be significant issue needing sufficient discussion. This issue is critical if it caused by not only real estate policy limiting choice banks make, but also deficiency in legal system related to project financing. Based on the above, second step below is to suggest discussions. First of all, it is adequacy evaluation of present real estate project financing that depends on personal guarantee. And facing the reality depending sorely on payment of sales, it is believed that there are many cases development company change its development business main body and/or subject, or liquidate development business. Here, it is necessary focus ‘Real Estate Project Financing and Collateral Right’ as the original intension of Financing and Collateral, and the following problems may arise in this view. Firstly, problem with collateral function of cash flow. Other than the fact future sale payment becomes recovery/collection of loan lent, a question is whether the idea that the future sales payment may become collateral of present loan lending coincides collateral law with principle logic of in a legal sense. It is the supporting evidence of this question with the fact that the portion when value of land, etc., provided as collateral is less than loan amount is covered in a manner with liability property provided by construction company as payment guarantees. Therefore, it is necessary to pay attention to ⅰ) Dividing pre-completed project into pre-sales and post-sales, how cash flow after sales function in pre-sales project collateral power, ⅱ) Dividing into project in progress and completed project, how cash flow genrated by completed project function in collateral power during constructin before the sales.