책임전질의 체계적 해석과 활용을 위한 시론

An Essay on the systematic construction and application of the sub-pledge

The key to the effectiveness of secured credit is that it allows transactions to use the value inherent in their assets as a means of reducing the creditor’s risk that it will not be paid. The secured creditor can also himself give the secured assets in security as well as the secured obligation, ie a pledgee may grant a sub-pledge. But when the secured creditor whishes to use the pledged assets or give them in security, the consent of the grantor is required in principle. The Korean Civil Code provides two kinds of sub-pledge, one is as stated above with the consent of the grantor(§§343,324(2)) and the other without it(§§336,337). On the latter the prevailing opinion is that the sub-pledged object is the pledge coupled with an assignment of the debt secured by that security interest. But it means only the creation of a pledge in a receivable secured by a pledge, not a sub-pledge. So §336 is to be construed to provide the way and the validity to give the pledged assets in security. The article becomes the authority for the pledgee to create a sub-pledge. However, the pledgee may not grant a sub-pledge greater than his own and for an amount exceeding that secured by the pledge to him. In general the law governing a sub-pledge looks reasonably clear, but the existing constructions are unsystematic and inconsistent. This paper propose to identify a sub-pledge as a sub-security which gives secured assets in security for the secured creditor or the third party, and examines the way to balance the interests of the parties concerned.