양도담보와 대내적 소유권 개념에 대한 고찰

대법원 2015. 3. 12. 선고 2014다21410 판결을 중심으로

Security by means of transfer is a type of security which entitles the obligee the ownership of the secured property furnished by the debtor or a third person. As such, security by means of transfer takes the form of transfer to secure the debt. Such discrepancy between the form and substance has given rise to a number of complex issues regarding the right of the parties concerned. Korean Supreme Court has attempted to solve such issues by recognizing the concept of “relative” ownership. Supreme Court decisions dealing with the security by means of transfer hold that the settlor has the ownership in the relation to the security holder, and that the security holder has the ownership in the relation to any third party. Such doctrine has been heavily criticized, as it does not seem compatible with the concept of “absolute” ownership the Korean Civil Code stipulates. However, Korean Supreme Court has maintained the doctrine when the security by means of transfer is at issue. This paper examines the validity of the doctrine by studying a particular case, Supreme Court Decision 2014Da21410. The concept of relative ownership seem to render the judgment on the right of settlor, security holder, or the third party concerned particularly difficult. It also arises problems in explaining the reasoning behind several Supreme Court Decisions.