근저당권부 대출채권의 유동화거래에 관한 법적 고찰-자산유동화에 관한 법률에 의하지 않는 유동화거래(Asset-Back Loan Transaction)를 중심으로- = Asset-Backed Loan Transactions Outside the Act on the Asset-Backed Securitization of Korea

다국어 초록 (Multilingual Abstract)

I study the structure of the asset-backed loan transaction (the "ABL transaction"), underlying assets of which are kun-mortgage loans, done outside the Act on the Asset Backed Securitization of Korea (the "ABS Act"). The asset-backed securitizations governed by the ABS Act (the "ABS transaction") enjoy numerous benefits, such as simplified perfection and registration mechanism with respect to the transfer or entrustment of kun-mortgage loans or tax benefits. However, only eligible originators listed in the ABS Act may engage in the ABS transaction and, therefore, companies other than such eligible originators have no choice but to conduct the ABL transaction not governed by the ABS Act for the funding purpose. In this regard, I review the structure of the ABL transaction conducted by a lending entity which is not an eligible originator in the ABS Act in comparison with the ABS transaction conducted by the eligible originators. In the ABL transactions, unlike the ABS transactions, the lending entity as originator must (i) obtain consent to fixation of the secured obligations of the kun-mortgage loans from the obligors (the "Obligors") of the kun-mortgage loans, (ii) perfect the transfer or entrustment of kun-mortgage loans by sending a notice to or obtaining consent from the Obligors with a fixed date stamp thereon, (iii) have kun-mortgage loans registered in the name of the transferee or the trustee and (iv) obtain a loan through a special purpose vehicle (the "SPC") from the lender instead of the SPC's issuing bonds to investors. In addition, thin capitalization rule must be carefully examined in structuring the ABL transaction. Lastly, I also make suggestions for removing legal obstacles to revitalizing the ABL transactions.