(ABSTRACT)
After a financial crisis in 1997, financial companies have been aware of assets quality and credit risk, so they have preferred a loan on security that is certainly able to collect debt. And because of the international trends for the uni...
(ABSTRACT)
After a financial crisis in 1997, financial companies have been aware of assets quality and credit risk, so they have preferred a loan on security that is certainly able to collect debt. And because of the international trends for the unification of collateral laws and increase of an international financial transaction etc., security system which utilize movables and a bond besides real security is being magnified.
Because real estate is limited in quantity, the number of user that utilizes real estate to a collateral object is limited too. Therefore, the person which wasn't able to maintain real estate has considerable trouble in financing with real security.
In order to get out at excessive dependence regarding real security, we have to utilize positively movables security. Specially, small and medium-sized businesses have trouble in financing with shortages of collaterals such as real estate, even if they are maintaining generally a techonology with considerable levels. So they must be able to raise funds through movables like machine and facilities.
Therefore, in order to activate a movables security system, the act on movables security system which is called 『Act on Security of movables and claim etc.』 was established recently.
This act introduced the new collateral system which is different with the existing collateral which utilized movables. Also, scope of movables collateral transactions will be gradually extended by enforcement of this act, because of solving a problem which is given too much importance in real security.
When a mortgagor of movables sets up a security right of movables, a mortgagee of movables can occupy a collateral object, but generally this act is planning the case that a mortgagor of movables occupies movables. So a mortgagor of movables unlike pledger can use a collateral. Therefore, a disadvantage of the right of pledge that a pledger can't use a security, can be overcome.
On the other hand, the new collateral system can set up several security right by adopting the public notification ways of registration on movables security. Therefore a exchangeability of movables can be maximized and a problem of happened movables collateral by incomplete public notification ways may be solved.
Although the new act is enforced, the existing movables collateral system don't be abolished. So the existing movables collateral system is coexisted with the new movables security system.
There are a lot of branches a section criticized on interpretation. For example, we should understand as follows.
And a mortgagee of movables has overtaking-effect, so the third party who purchased a collateral object acquires ownership with burdens of a security right of movables. a mortgagee of movables can practice a security right of movables about a collateral object of the third party by overtaking-effect. And a collateral object may also be exchanged against monet or other things which the mortgagee of movables is entitled to receive by reason of the disposal, lease, loss, damage, or public requisition of the thing pledged.
Namely, a mortgagee of movables not only can get from a repayment from a security right of movables by overtaking-effect, but also can obtain monet or other things which the mortgagor received by reason of the disposal, lease, loss, damage, or public requisition of the thing pledged.
Also there are various problems like limitaion of user's scope of the new collateral system and problem in connection with surrogation etc. in this act.
Therefore, before 『Act on Security of movables and claim etc.』 is enforced, we should supplement and revise various problems of this act.
If the new collateral system is come to stay promptly and a system financial of our country becomes advanced, fund supply of small and medium industries can be easy. The new collateral system must be operated in order to systematically harmonize with the existing right of pledge and chattel mortgage.