자산유동화와 진정한 매매의 법리

윤부찬(Bu-Chan Yoon) 한국비교사법학회 2007 比較私法 Vol.14 No.3

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.

자의 권리로서 면접교섭권

윤부찬(Bu Chan Yoon) 한국가족법학회 2010 가족법연구 Vol.24 No.2

When there is a divorce, one of the parents is awarded custody based on the best interests of the children. An estimated one hundred thousand children have separated or divorced parents each year. Because of our increasingly mobile society, approximately one Korean five changes residence and many children struggle to maintain a relationship with each of their parents when their families divide. The reason of child’s relocation by custodial parent is need for parent after divorce to secure or retain employment, to pursue educational or career opportunities, or to reside in the same location as a new spouse or extended family or friends. This paper examines the requisites of child removal by custodial parent after divorce and the ways and the requisites to protect noncustodial parent through alternation of parental authority and visitation in Korea. The removal of child may be obstacles to protect child’s best welfare or noncustodial parent’s right to visit. Korea Civil Code Art. 914 provides that the child shall reside at a place designated by a person of parental authority. In Korea, the person having parental authority to the child after divorce is not always custodial parent. Without the consent of the person having parental authority or the order of the court approving to relocate the child after hearing, not having parental authority custodial parent can not relocate the child from the original residence. This paper suggests to amend the Art. 914 of Korea Civil Code to admit the custodial parent’s removal of the child without consent of the person having parental authority or the order of the court. Because of the recognition of the modification on parental authority and visitation, the right of noncustodial parent being affected at the child’s removal can be cured. Korea Civil Code provides that the court should consider the best interest of the child in the procedures of the modification on parental authority and visitation. However, the Korea Civil Code does not enumerate the factors should be regarded to protect the child’s best interest in the procedures. So, this paper suggests following factors and standard to approve the removal the child by custodial parent, the modification of the parental authority and visitation. In the procedure of removal of child by custodial parent having not parental authority, the court should consider the element of the good faith and absence of malice of relocating parent. The most common good faith reasons for relocation may be employment or educational opportunities for either the custodial parent or the custodial parent’s new spouse or education opportunities of the child or moving to be near extended family to provide better environment, and so on. In the case of modification of parental authority, the court should change the person having parental authority only after three standards to be showed by the applicant; (1) that a substantial change in circumstances has transpired after the removal of child; (2) that this change adversely affects the child’s welfare; and (3) that the child's best interests mandate a change of custody. In child visitation modification proceedings after child removal, if only there are the needs of continuing relationship between the noncustodial parent and the child, the right of noncustodial parent’s visitation affected at the removal of child by custodial parent should be protected by it’s modification. The adjustment of visitation may be the modification of the schedule of visitation or the compensation of the transportation costs, if needed, or alternative supplement of visitation like virtual visitation.

잔존배우자의 재혼과 실종선고의 취소

윤부찬(Yoon, Bu-chan) 한국가족법학회 2014 가족법연구 Vol.28 No.1

Article 27 of Korea Civil Code provides for the Judicial Declaration of Disappearance: (1) If it is uncertain for five years whether an absentee is alive or dead, the court shall, on the application of any person interested or of a public prosecutor, make a judicial declaration of disappearance. (2) The provisions of the preceding paragraph shall also be applicable where the survival or death of a person who was on a battlefield, aboard a sunken vessel or a downed aircraft, or encountered any other peril that might be a cause of death, is not known distinctly for one year after the termination of the war, the sinking of the vessel or the crash of the aircraft, or the end of any other peril. And, Article 29(1) states annulment of judicial declaration of disappearance. If it has been proved that a person against whom a judicial declaration of disappearance has been made, is alive or dead at a time different from that specified in the Article 28, the court shall, on the application of the person himself, any person interested, or a public prosecutor, annul the judicial declaration of disappearance. But such annulment shall not affect the validity of “acts done in good faith, after the judicial declaration of disappearance and prior to its annulment[Art. 29(1)].” It has been argued that the language of 29(1) quoted above shall be applied to remarriage of the missing person’s spouse after judicial declaration of disappearance and prior to its annulment. This paper supports the position that the quoted language should be applied to the remarriage of the spouse. Since the parties of remarriage should be presumed in good faith, the returned missing person being declared annulment of judicial declaration of disappearance, might show one of the parties of remarriage not in good faith when they married. Even though one of the parties of remarriage were not in good faith when they married, the marriage may be bigamy but not crime for Korean Civil law purpose. In the case of bigamy, a claim for annulment of the marriage to the court may be made by claimant such as either party, the spouse, the lineal ascendants, the collateral blood relatives within the fourth degree of relationship, or a public prosecutor(Article 818). This paper also points out followings. To the purpose of bigamy caused by annulment of judicial declaration of disappearance, there is no provision about periods to claim annulment of bigamy and, article 818 provides too wide claimants of annulment.

장기기증 의사표시에 대한 민사적 제문제

윤부찬 ( Bu Chan Yoon ) 한남대학교 과학기술법연구소 2009 과학기술법연구 Vol.15 No.1

In 1999, Internal Organs, etc. Transplant Act was established in Korea. According to the Act, it is possible to take internal organs from the alive, the dead, and the brain-dead. However, the Act has the critical points at civil issues as mentioned below. To begin with, it should be scrutinized regarding minors in civil law. Article 8 of the Act stipulates a minor older than 16 may declare one`s intention to donate internal organs independently, only the case of enucleation the consent shall be obtained from the legal representative. However, letting minor`s declaration of intention be valid without any legal consent infringes the protective ideology of minors. Thus, the Act must be amended as the consent of minor`s legal representative is mandatory for a minor to donate internal organs. The second, the Act does not regard the brain-dead as the dead, in spite of this, regarding the donation of internal organs they are treated as the very same. After one`s death, one`s body comes under the jurisdiction of the bereaved family, then a member of the bereaved family may donate internal organs of the dead person. Even though the Act does not accept the brain-dead as the dead, the family do not meet the hurdle to donate internal organs of the brain-dead person, and the family can declare the intention to refuse the enucleation against the brain-dead person`s advance intention to donation of internal organs. These attitudes of the Act mentioned foregoing should be reexamined because these are not reasonable especially when we think about the civil law system.

전문자격 등의 재산분할대상성 및 분할방법

윤부찬(Yoon Bu-Chan) 동아대학교 법학연구소 2009 東亞法學 Vol.- No.43

In 1990, the right of claims for the division of property on divorce between spouses, is stipulated into Article 839-2 of the Korean Civil Code. This Article provides as follows; (1) One of the parties who gets a divorce by agreement, may claim for division of property against the other party. (2) If no agreement is made for division of property as referred to in paragraph (1), or if it is impossible to reach an agreement, the Family Court shall, upon request of the parties, determine the amount and method of division, considering the amount of property acquired by cooperation of both parties and other circumstances. To serve its purpose substantially, proportions as well as properties formed during marriage should be divided, however the Article is too concise to be perfect, it would be found that immoderate discretion is leaved to the court especially regarding the methods of their valuation in the procedure of divorce. The Supreme Court held that professional degree is not a property right to be divided in the divorce proceeding owing to its attribute. In one case, the Supreme Court ruled that husband's Doctor Degree is to be just a factor of consideration in the divorce proceeding to divide the marital properties. This paper points out that the object which has to be divided in the procedure of divorce is not the one spouse's professional degree or license itself but the increased earning capability formed by spouses joint contribution during their marriage. In my humble opinion, one spouse's increased future earning capability does not fall under the category of personal attribute, but an income-generating intangible asset. One can sell, even in advance, the proportion of the future earning capability as long as it is possible to determine the proportion. Although the valuation of the future earning capacity is not that simple, that is not be a proper reason to exclude one spouse's increased future earning capability from marital properties.

빛공해 방지법의 제문제

윤부찬 ( Bu Chan Yoon ) 한남대학교 과학기술법연구소 2012 과학기술법연구 Vol.18 No.3

현대 사회에서 환경 보호의 필요성은 아무리 강조해도 지나치지 않다. 그 동안 환경오염의 요인으로서 대기, 소음, 진동에 관하여는 많은 관심을 기울이고 이를 규율하기 위한 특별법도 제정되어 있다. 그러나 인공조명이 공해를 발생시키는 요인중 하나라는 인식은 비교적 최근에 들어와서야 이루어졌다. 즉, 1970년대에 들어와서 천문학자들 사이에 빛이 공해가 될 수 있다고 인식이 이루어졌으며, 각국과 조명관계 국제단체들은 이를 규율하기 위한 방안을 강구하기 시작하였다. 그 동안 우리 나라에서도 빛공해를 전적으로 규율하는 법률은 없었고, 다만 도로법이나 지방자치단체의 조례로 단편적으로 인공조명을 규율하고 있었을 뿐이다. 2012년에 비로소 인공조명에 의한 빛공해방지법이 국회를 통과하여 2013년 시행될 예정이다. 이 논문에서는 빛공해의 정의, 빛공해방지법의 주요내용, 빛공해방지법의 해석상 문제점 등을 살펴보았다. 그런데, 환경행정법으로서 빛공해방지법은 그 목적을 달성하기 위해서 국가가 국민을 규율하는 것을 주요한 수단을 채택하고 있다. 그러나 환경행정목표를 실현하기 위해서는 국가가 국민을 일방적으로 규제하기 보다는 환경통제에 따를 수 있도록 행정적 재정적 지원을 통해 국민이 그러한 규제에 따를 수 있도록 유도하는 것이 중요한데, 그러한 면을 빛공해방지법이 예정하고 있지 않는 것은 이 법의 실효성을 확보하는데 어려움이 초래될 수 있는 것으로 보인다. 또, 빛공해방지법은 빛방사허용기준을 설정하고 있는데, 이는 조도와 휘도만을 규율하는 것으로 장해광으로 인하여 발생하는 눈부심, 하늘 밝아짐 현상을 규율하기에 충분하지 않은 점이 보인다. Today, it is hard to be overemphasized the need to protect environment. Traditionally, the contamination of air, water, soil, or noise, vibrations, malodor, are recognized the sources of environmental pollution. After the 1970s, Astronomers began to use the phrase “light pollution” to describe the phenomenon of wasted light being cast into the atmosphere, which ultimately hinders astronomical observations. The results of many years study and research to the impacts of light and light pollution in various contexts, the needs of regulation to artificial light is accepted by some countries and international society. Some countries, like England, Australia, Italy, enacted the law to regulate artificial light causing the light pollution. Until 2012 in Korea, there is no special law limiting light pollution except the ordinance of administrative guidelines of wayside lighting fixture or municipal ordinance of light pollution. Light Pollution Prevention Act was passed by the Korea National Assembly in February 2012, and the Act shall enter into force on February 2, 2013. This paper examined the concept of light pollution, important contents of the Act, and the interpretational problems of the Act. As a kind of environmental administrative law, the Act only take the methods to regulating the general public to achieve the purpose of the Act, which prevents the damages to the public good health and environments by limiting excessive lights from artificial lighting sources. Instead of merely regulating methods, this paper points out that financial inducements are essential to achieve the goal of the Act. To the permissible light emitting levels, the Act and its Enforcement Decree provide luminance standards of light emission sources and vertical illumination standards on the residential area. But only the two standards are not sufficient to limit sky glow, light trespass, glare, and clutter. So, this paper suggests more diverse methods regulating light pollution.

연구논문 : 정보통신기술의 발달에 따른 면접교섭활성화 방안으로서 가상면접교섭

윤부찬 ( Bu Chan Yoon ) 한남대학교 과학기술법연구원 2014 과학기술법연구 Vol.20 No.3

우리 나라의 조이혼율은 2013년 2.3%로 OECD 국가중 가장 높다. 이혼의 가장 큰 피해자는 미성년 자녀이다. 부모가 이혼한 후에도 미성년자녀가 부모로부터 보살핌과 사랑을 받고 성장하여 건강한 사회 구성원이 되도록 해야 하는 것은 우리 모두의 책무이다. 이를 위하여 이혼후 자녀를 직접 양육하지 않는 어버이의 일방에게는 면접교섭권이 인정된다. 이 제도가 우리 나라에 법제화된 것은 1990년이다. 그런데 2006년 이루어진 이혼후의 자녀 양육실태에 관한 연구에 따르면 이혼후에도 비양육친이 그 자녀를 정기적으로 만나는 비율은 9.8%로 매우 저조하다. 면접교섭이란 비양육친이 자녀를 직접 만나는 방식인 면대면 면접교섭이 가장 바람직한 것은 물론이다. 그러나 이는 시간적, 공간적, 경제적 제약이 따른다. 그리하여 이러한 제약과 상관없이 면접교섭이 가능하도록 새롭게 대두되는 것이 인터넷과 같은 정보통신 기술을 활용한 가상면접교섭이다. 우리 나라는 현재 정보통신기술과 인프라의 측면에서는 가상면접교섭을 하는데 충분한 물적ㆍ인적 기반이 갖추어진 상태이다. 본 연구에서는 최근 제정법 또는 판례를 통해 가상면접교섭제도를 적극적으로 시행하고 있는 미국의 사례를 연구함으로써 우리나라에서 가상면접교섭제도를 시행할 경우 어떠한 점을 고려해야 할 것인지를 연구하였다. 연구결과 우리 나라에서는 가상면접교섭을 도입하기 위하여 반드시 입법을 하여야 할 필요는 없는 것으로 보인다. 그러나, 이의 시행을 위한 해석에 있어서는 몇 가지 점을 주의해야 한다. 첫째, 가상면접교섭은 대면 면접교섭의 대체물이 될 수 없다는 것 둘째, 가상면접교섭에서 통제 내지 감독이 필요하다는 것, 셋째 특히 계속적으로 이루어지는 가상면접교섭에 대하여는 부모의 합의와 법원의 심사가 필요하다는 것, 넷째 미성년자녀의 거주 이전시에는 가상면접교섭이 효과적인 면접교섭의 보완수단이 될 수 있다는 사실 등이다. Korean divorce rate is 2.3% in the 2013, the highest one among the OECE. The Biggest victim is the minor child when his parents divorced. To care minor children is our responsibility so that they can be sound members of our societies after their parents divorce. The right of visitation is awarded to the parent who does not physically care the child after divorce. The right of visitation was introduced in 1990, as the Article 837-2 of Korea Civil Law. According to the survey for the raising condition of minor child after divorce, only 9.8% of the non-custodial parent periodically meets their minor child after divorce in Korea. Face-to-face visitation is the ideal way to keep on the relationship between parents and children. But there are some obstacles like, spatial, economic and time perspectives. However, virtual visitation being involved connecting two computers through the Internet, is free from these obstacles. Korea has sufficient information and communication infrastructure to satisfy the needs of virtual visitation. This paper examined the statutes and cases granting virtual visitation in U.S. As a results, this paper suggests followings. First, there are no needs to reform the code of Korean Civil Code, by the theory of interpretation, virtual visitation can be included in visitation. Second, virtual visitation should not replace face-to-face visits. Third, if there were domestic violence or child abuse, virtual visitation may be controlled or prohibited similarly with visits. Fourth, durational virtual visitation like Kakao-Talk or Webcam, can be allowed by the agreement between the parents and Courts orders after the test of the best welfare of child. Fifth, virtual visitation can serve useful supplement face-to-face visitation after relocation of the child far away from non-custodial parent’s residence.

공사 하수급인의 대금채권 확보수단

윤부찬(Yoon Bu-Chan) 한국토지공법학회 2005 土地公法硏究 Vol.28 No.-

Contract means an agreement for doing work or furnishing material, or both for or about a building and subcontractor means a person who has a contract with anyone except the owner or his agent. In the construction industry, contractors, subcontractors, materialmen were frequently obliged to extend credit in larger amounts and for longer time, than other businesses. Such parties might haver their entire capital, or a substantial part of it, tied up in one or two, or ten or twenty, projects under construction. So guaranty system is essential to protect them. In order to provide a guide of guaranty system, this paper focus on analysing subcontractor payment bonding system and direct payment system in Korean Fair Subcontract Act 2004. The purpose of subcontractor payment bond is to security payment for the suppliers of labor and materials on construction project and to faciliate credit in the construction industry. However, according to the Act, all subcontractor did not receive payment bond. If the price of all materials supplied or delivered to the improved site or performed improvement labor is less than 30 million won, no bonds were provided to the materialmen or the workors. Furthermore, when contractors is graded higher than A in credit rating by 2 rating agency, the burdens that the contractor issue payment bond to guaranty to subcontractor is exempted. And under the Act, where main contractor is insolvent, or did not make payment to subcontractor twice, or where the owner, contractor and subcontractor arrived at the contractual agreement for direct payment, owner of the improved property can make direct payments to the subcontractor. As a result of the requirement of direct payment, all the subcontractor can not be protected by it. So, in korea, construction bonding system is unique method to provide security right to subcontractor but still has deficiency in its operation and effectiveness. To prevail this problems, a new mortgage system or security right is needed in construction industry site. Because, even though section 666 of korean civil code provide that mortgage right to the real property furnished services or materials pursuant to a real estate improvement contract can be given to contractor by owner, but without owner's consent it is impossible to attach mortgage to the real property. So in this paper, I make an examination of a analysis of the mechanic's lien and the statute in america. It is very impressive that subcontractors get the lien regardless of any contractual privity with the owner or main contractor, and a mechanics' lien is a statutory right to a claim against property given to subcontractor such as a laborer or materialman who improves a property. Furthermore in some jurisdiction, the fact that no matter how far removed from the contracting owner can file a lien, may stipulate the construction industry. Consequently I think mechanic's lien can be a model to improve guaranty system at the construction site in korea.

담보부동산 수익관리제도에 관한 연구 -미국과 일본 제도의 비교를 중심으로-

윤부찬 ( Bu Chan Yoon ) 연세대학교 법학연구원 2009 法學硏究 Vol.19 No.3

A traditional real estate mortgage is an interest providing value of exchange of mortgaged premises to the mortgagee by giving him the right of power of sale after debtor`s default. If the mortgagor did not pay the debt being secured by the real estate mortgage, the mortgagee`s credit is satisfied from the proceeds of the judicial foreclosure sale. Judicial foreclosure by sale in a court action, that is, a public sale is a major method of foreclosure in Korea. In addition to the foreclosure by sale, the necessity of the mortgage receivership as a method to execute the security by the rents and profits of the land is reviewed in Korea. After Japan revised the Civil Code and Civil Execution Act 2003, introducing the mortgage receivership to collect the rents and profits of the land, korea academic fields give attention to the mortgage receivership. Because Korea legal system is received from Japan, investigating the Japanese Mortgage Receivership System is very helpful in devising the system of Korea. However, in the course of the drafting the Japanese Law, it is said that the United States Mortgage Receivership System was mainly discussed. For setting up Korean Receivership System, by a comparative study on the United States and Japanese Systems, this paper examines the disputes on the requisites of rents and profits management after mortgage default. Following three discuss points should be noted. First, the mortgagee`s rights or grounds for collecting or managing the rents or profits of the mortgaged land should be provided in substantive law. For this, Japanese Civil Code Art.371 provides that a mortgage shall be effective against the fruits after default by debtor. But in the United States, in some states of lien theory about mortgage, the mortgagee has the right to obtain possession of the mortgaged premises after default by debtor. And in the states the title theory, and in the intermediate states, because the mortgage conveys the title of the mortgaged premise to the mortgagee by the creation of mortgage, both the corpus and the income from the mortgaged premise are part of the security. The second point to be discussed is procedural requisites to appoint the receiver. In Japan, even though mortgagee has valid credits and securities, if the debtor does not pay the money on the time for performance, the mortgagee is entitled to apply for the appointment of receiver against the court. However, in applying for the appointment of receiver, the Courts of the United States demand more strict requirements than Court of Japan. The Courts of the United States often impose additional requirements such as mortgagor insolvency, inadequacy of the security and danger of loss, waste, destruction of the property. The distinction of both country`s systems implies that the United States System appreciates the mortgagor`s rights to possess the mortgaged premises more highly than that of Japan. The last point is establishing the position of receivership as foreclosure procedure. In Japan, commence of management procedure for collecting the rents and profits of the premises is irrelevant to the foreclosure by sale. But it can be devised to accompany with a public sale. In drafting Korea Mortgage Receivership System, above three points and the distinctions of both countries should be carefully examined.

한국에서의 자산유동화 제도

윤부찬(Bu Chan Yoon) 연세대학교 법학연구원 2001 法學硏究 Vol.11 No.4

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