Earticle

초록

영어

According to the 2009da90146 judgment of Supreme Court, the transferee is the person holding the transfer security right who receives the return claim for loan on the transferor's third party debtor as the security that occurs due to the termination of sales contract. However, until the third party debtor's sales contract with the transferor is terminated, the transferee is the person holding the conditional transfer security right. Since the claim is transferred to the transferee while its identity of the content is maintained as soon as the claim transfer contract is concluded, the transferee may be able to exercise the transfer security right only after the transferee acquires the conditional claim transfer security right with time limit and the conditions are met or the claim becomes due. Therefore, the transferee's request for terminating the sales contract to the third party is merely the declaration of intention to acquire the general claim transfer security right by having the third party debtor to give notice to terminate the sales contract and the debtor's return claim of sales money against the third party debtor transferred to the transferee, so it cannot be considered as the act to exercise the transfer security right. On the other hand, the exercise of the security right means the realization of rights under private law through automatic execution of the right of realization inherent in the security real right. Therefore, the transfer security right holder's 'payment request' to the third party debtor is a part of realization act exercised in the way provided in the security contract, so it can be considered as the act to exercise the transfer security right. In order for the comprehensive injunction to become effective on such act to exercise the transfer security right in this case, the third party debtor's notice to terminate the sales contract given to the transferor must be valid. However, the clause on the cancellation of bankruptcy is invalid since it may become an obstacle to debtor's successful rehabilitation by the rehabilitation process, and the clause is invalid. the third party debtor have given the notice to terminate the sales contract to the transferor based on this invalid clause on the cancellation of bankruptcy, so the notice is invalid. The notice to cancel the sales contract must be given to the third party debtor's transferor prior to the transferee's payment request which is the act to exercise the transfer security right, but the notice is invalid and the conditions for exercising the transfer security right have not been made. Therefore, the effectiveness of comprehensive injunction is out of the question. If so, the judgment ruling that the termination of sales contract between the third party debtor and the transferor is valid cannot be considered as justifiable. After the implementation of the debtor rehabilitation act, commencement applications for corporate rehabilitation case proceedings in courts across the country skyrocketed from 116 cases in 2006 to 803 cases in 2012, and to 395 by June 2013 (estimated 830 cases by year end) the number continually increasing each year growing to a scale of 7 times the amount 7 years after the law was implemented, however, the success rate of corporate rehabilitation proceedings of 15.5%(19.1% in the first half of 2013) appeared to be much lower than the success rate of the previous company reorganization act of 66.7%. Quantitatively, this can be evaluated as a positive, yet qualitatively, from the standpoint of the goal of the corporate rehabilitation proceeding, the very low success rate can be seen as a dire problem. For the last 3 years the increase of 860 cases of rehabilitation plans in corporate rehabilitation proceedings in courts across the country for 3 years saw a reduction in the time it took from commencement to approval from 9 months 9 days to 8 months 29 days, a reduced wait time, but when considering the total time it takes from applying and waiting about one month for a commencement decision to be made, and the period it takes for the preparing for the application, it appears to take closer to 1 year. Recently ‘fast track rehabilitation proceedings’ have been run for corporate rehabilitation cases by the court and at the working level, but despite this, it was determined that the main reason for the very low success rate was the extremely long wait time it takes for the progression of the proceedings. Through extensive hands-on experience in corporate rehabilitation work, the author reiterates that more than anything else, the necessity of ‘fast rehabilitation proceedings’ as a factor for the success of corporate rehabilitation, and through taking the direction of reducing wait times to increase the success rate of corporate rehabilitation proceedings the process of stages should be either aggressively reduced, merged, or some stages omitted, and when agencies and organizations perform their role and function of improving the system of legislation and rehabilitation proceedings in the abbreviated ‘fast track rehabilitation system,’ working-level improvements would be necessary to perform fast rehabilitation practices.

목차

사실관계와 소송경과
 Ⅰ 서론
 Ⅱ 장래채권을 담보목적으로 한 채권양도담보권
 Ⅲ 양수인의 제3채무자에 대한 지급요청이 양도담보권의 실행행위에 해당하는지 여부
 Ⅳ 포괄적 금지명령과 매매계약 해제통지의 효력
 Ⅴ 결론
 참고문헌
 Abstract

키워드

양도담보권 장래채권 채권양도담보 도산해제조항 포괄적금지명령 양도담보권 실행행위 Transfer security right future claim claim transfer security bankruptcy termination clause comprehensive injunction execution act of transfer security right.

저자

• 양형우 [ Yang, Hyung-Woo | 홍익대학교 법과대학 교수, 법학박사 ]

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