동산담보권과 선의취득

Security over Movable Property and Good-faith Acquisition

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.