根擔保 關聯 民法改正案에 대한 若干의 意見

Some Suggestions for Amendment of the Law concerning Floating Sum Securities in the Korean Civil Code

The Korea Civil Code has only one article concerning floating sum mortgage, but no one article concerning floating sum surety. However, the floating sum mortgage and floating sum surety are used commonly and widely in the field of security. Therefore, it has been so strongly needed and expected that the floating sum securities should be regulated concisely and sufficiently with new supplemented articles thereon. But until now it has been failed for the Government to do such an amendment of the floating sum securities in the Korean Civil Code. In financial practice, such statutory lacks on the floating sum securities have been covered and supplemented by academic legal theories, judicial predecents, and general terms and conditions on financing. In 2004, an amendment draft of the law concerning the floating sum securities was prepared as an important part of the amendment of the Korean Civil Code(Property law) by the Government and it was submitted to the National Assembly. The National Assembly has not considered it until the term of office of the members of the National Assembly was completed in the May 2008. Therefore, the amendment draft of the Korean Civil Code was automatically repealed at the end of the May 2008. From now, a new amendment draft of the Civil Code shall be once more made by the Government and proposed to the National Assembly. In the repealed amendment draft of the Civil Code, there were also some problematic articles, which were not suitable and not proper to be adopted. In the field of the floating sum mortgage, there were no regulations on its arrangement in case of restructuring companies, especially dividing and partitioning companies, and on lessenig the strict requisite for auction of building together with land. Further, it had some unreasonable articles concerning the floating sum mortgage, too. In the field of floating sum surety, its duration period was very short and obligee should bear a burdensome duty to inform guarantor of the financial standing of obligor. In Korea, there has been a tendency for bank to prefer securities on immovables to personal surety. Such a tendency was a reason, why individual and companies tried to aquire immovables as much as possible. Therefore, it was a remote reason for speculation of immovables. The securities on immovables and the personal surety shall be balancedly used. For balanced use of both securities, a new amendment draft of the law concerning the floating sum securities shall be prepared and thoroughly regulated. Furthermore, the law concerning the floating sum securities shall be harmonized with financial practice and function as guideline for economic living of peoples. In the new amendment draft, such goals shall be completely realized.