動産擔保制度의 改善方案

A Proposal to Reform the Current Secured Transactions Law on Movable Property in Korea: An examination of the adoption of the notice-filing system of Article 9 of the United States Uniform Commercial Code

Since the financial crisis of 1997, the reformation of the Secured Transactions Law has become an important issue in Korean civil law. In particular, it has been urged that a new legal framework of security interest over movable property should be introduced. Movable property has not been used as a popular security device in financing transactions. One of the main reasons is that the current system for security interest on movable property is ineffective and its public notice function is quite inoperative. Hence, it is necessary to reform the Law and to adopt new publicity methods. This article introduces Article 9 of the United States Uniform Commercial Code (UCC), which governs secured transactions on personal property, and examines the feasibility of its adoption into the Korean legal system. The notice-filing system of Article 9 of the UCC has inspired, locally, a reformation movement on security law in many other countries and, internationally, a creation of secured transactions model law, namely the European Bank for Reconstruction and Development (EBRD) s Model Law on Secured Transactions. However, it is anticipated that the adoption of such a system will cause some incompatibilities with the Korean legal system. Because Korea has a civil law system and the United States has a common law system, the incorporation of the American notice-filing system into Korea may cause many problems. Therefore, the key to successful reformation of security law on movable property in Korea is to find solutions to harmonize both legal systems. An introduction of a notice-filing system is a mere change in publicity method, yet it may cause a fundamental reform in security law on movable property. It may further affect not only civil law but also commercial law and bankruptcy law in a substantial way. Because of these repercussions, the adoption of a notice-filing system into Korean law may bring about huge difficulties. The current legislation and practice in Korea since the late 1990s is to incorporate American law into the Korean legal system without further analysis or examination. However, in order to cultivate innovative legal development in Korea, we must conduct extensive comparative studies and thoroughly examine legal theories before adopting American laws into the Korean jurisdiction.