流動集合債權의 讓渡擔保에 관한 日本判例의 動向

A study on the Japanese Judicial Precedents about the Floating Lien of a Collective Receivable

The floating lien of a collective receivable, it plays a important role in society and economy. It is mainly used in financial affairs, for a example, lease, factoring, selling on credit, etc. It has been used by men of affairs for a long time in Japan, so, many Japanese judicial precedents about it have been accumulated. Japanese scholars had begun to study the normal form about it. This meaned that they regarded it as ‘terminal credit- giving method , and the transferee as the right person. The principle that all obligees are equal one another is connected with this subject. The transferee is apt to be infringed his right, if this principle is applied strictly. That is to say, this principle should be applied loosely, because his exercise is a kind of practice. These precedents mostly acknowledge its effectiveness, and they include legal subjects about the ‘specification and the ‘fair order and good custom . As to the ‘specification , we have to decide its existence case by case. But the ‘unlimited inclusion cannot be the requisite of the ‘specification . So, the case that all obligations are transferred should be ineffective. In relation to this point, we need to study on the double cession of an obligation. this problem should be solved by the proportion of the obligation. As to the rule, ‘fair order and good custom , Japanese courts have a inclination not to proclaim ineffectiveness. This theme is divided into the suppression of the obligor, the infringement of another obligees. and the surplus security. In relation to this point, we have to study on the notification, the position, the liquidation, etc. Most of all, I hope that this paper help you understand it.