不動産 證券化에 관한 硏究

다국어 초록 (Multilingual Abstract)

Nowadays our financial institutions usually demand a joint surety or security of properties for a loan.
The loan with mortgage on the properties takes a long time to collect the loaned money. That causes some problems both to the supplier, the financial institutions and to the user, corporations and individuals.
In order to settle this problem, the government made the related laws, "Law of Floating asset"and "Corporate law of Floating House-secured bond". These laws are expected to have a positive influence on the fund-raising by the financial institutions, improvement of the financial conditions, the stable supply of housing fund and the development of new investment means.
However, it is not that easy to introduce the system into our country since it, being developed overseas, may have something that does not fit in with our situations. One of the obstacles to the operation of the systems is our mortgage which has some regulations contradictory to the principles adopted in modern mortgage systems. That is, the principles of public notice is marred by preferential taxation, preference on some portion of the deposited money in the lease of a house and the preferential ranking over the total deposit and the principle of specification is not well observed, either. The principle of fixed ranks is not kept due to the dependency of mortgage and secured bond related to the mortgage.
As for principle of specification, whereas the independence from the right of the use is protected, other principle such as abstraction , preservation of the investor's right, execution on the properties and negotiability do not match with principles of modern mortgage. The premises of funding real estate into securities are like relief or elimination of the mortgage's dependency on the secured bond, acknowledgement of the public confidence on the registration, funding of the mortgage and foundation and operation of the mortgage banks.
The need for the introduction of the real estate is closely related to our housing loan system.
The housing Loan banks have difficulties in raising fund and other financial institutions are unwilling to deal with housing loan because it hampers liquidity. So, the funding of real estate is expected to play an important role in raising financial resources and in the expansion of the housing loans.
In the German mortgage system, it is divided into mortgage and property liability. It is also divided into bonded mortgage and registered mortgage based on whether the mortgage bond was issued or not and proprietor's mortgage and other's according to whom the mortgage should be returned to.
In more details, regarding the floating mortgage, the mortgage may invoke the public confidence on registration. It is basically secured mortgage but exceptionally acknowledged as registered mortgage
For the preserved mortgage, the dependency is restrictively admitted and the mortgage may not invoke the public confidency on re registration for the secured bond. The property liability differ from the floating mortgage or preserved mortgage on the ground that it is not based on the secured bond. That is, bond is not necessary for the liability but it is possible to security land for a bonded mortgage. In Germany, mortgage banks take property liability independent form the secured bond exempt from dependency from the debtor and issue a secured bond, this time as a debtor and sell it is to the investors in the stock market. In Japan, the mortgage system based on 'Secured bond Law' made in 1931 is in effect.
Secured bond is a kind of securities made of a loan bond and proprietorial right over the bond and may be resold or circulated through endorsement and negotiation. In Japan, secured bond plays two roles, one is to provide the bond to the investors as a product of high interest and the other is to supply a long term stabilization fund. The funding of real estate in Japan means that in indirect finances, direct fund raising is possible and that the corporations may dived and compress their assets, then easier investment in real estate market and varied investment means, active real estate industry caused by expanded fee market and the business in the real estate market gets buoyant by new funds.
The U.S made 'National Housing Law' and opened the Federal Housing Office in 1930s in order to overcome recession. The Federal Housing Office was authorized to deal with the security on housing loan and organize the mortgage corporation. In the U.S., the funding of house-secured bond started in 1970 when the government issued a bond to help raise housing fund in the difficult situations of upward interest rates. the funding of house-secured bond in U.S. is operated by the Federal mortgage corporation, National mortgage bank and the Federal Housing Loan office.
The Federal mortgage corporation buys housings bond guaranteed by the Federal Housing office, National mortgage bank guarantees principal and interest when the financial institutions gather secured loans, issue and sell bonds and the Federal Housing office eases the fixation of fund and leads the secured loan markets by buying and selling secured bonds.
In Korea, September 1998, "Law of floating assets" was made and effective and it means in abroad sense, all the activities related to the funding of non-floating assets but in a narrow sense, cashing the non-floating assets in market by funding into securities. The merits of the funding of assets are such as reduction of a costs, finance free from the right of recourse, improvement of the financial conditions, simplified contract forms and the expanded investors' classes and its defects are the complexity of the business structure and the risk related to the law.
With regard to types of the funding, for the sale of loan bond, there are ways of assignment, split sale of the bonds for the funding into securities, of issuance of bonds insured with loan bond and the issuance of mutual bonds insured with the loan bonds.
The objects of the liquidation are bonds, real estates and other property rights and the conditions of the assets to be float are the possibility of trade and independence from the assets to be trustee company in bankruptcy, the collection and payment of the assets independent from the proprietor, the credit of the debtor in good condition and the exiting results of the collection and updated data of cash flow.
The float of the house secured bond means a financial institution raises fund by selling or funding the bonds in securities which it obtains after lending money for housing. To deal with the business of the funding of house secured bond, sanction by the Minister of Finance and Economy is required and the prerequisite of the license are corporation, the capital of 25,000,000 or more and the ratio of the equity capital over the limit as provided by the Presidential decree. If a company were to deal with the business, it has to register for the plan to Finance Supervision committee.
For the operation of the system, special cases on assignment of the bonds and on registration are provided and which is to secure both the rapidity and the safety of the business where the many persons are concerned. In the short term, the system is expected to be limited by the reversions of the interest rates and the structure of the secured loan.
In the long-term, if the economy gets prosperous, the lease holders may want to buy houses and the financial institutions are apt to be active in the business for the profitability and the improvement of the financial conditions. Since the investors on the house secured bonds are expected to grow as the interest rates get stable, the issuance of the bonds are expected to be activated. Some problems are expected to arise also. The issue of MBB, the type of mortgage, the acknowledgement of confidence on registration are the matters to be resolved.

목차 (Table of Contents)

• Ⅰ. 序論 = 1
• 1. 硏究의 目的 = 1
• 2. 硏究의 方法 및 範圍 = 2
• Ⅱ. 不動産의 證券化에 關한 基礎理論 = 5
• 1. 住宅抵當制度의 취약점 = 5
• 1) 公示의 原則 = 5
• 2) 特定의 原則 = 6
• 3) 順位確定의 原則 = 7
• 4) 獨立의 原則 = 8
• 2. 우리나라 抵當制度의 現況 = 12
• 1) 抵當權 流通 및 流動化의 認定 與否 = 12
• 2) 抵當權의 流通(流動化)과 抵當權實行의 問題 = 14
• 3. 우리나라 住宅金融制度의 運營體系 = 15
• 1) 우리나라 住宅金融體系 槪要 = 15
• 2) 住宅金融 市場構造 = 17
• 3) 主要 國家의 住宅金融의 發展과 特徵 = 18
• 4) 住宅金融의 當面課題 = 21
• Ⅲ. 不動産 證券化의 比較法的 考察 = 23
• 1. 獨逸抵當制度와 不動産의 證券化 = 23
• 1) 獨逸의 抵當制度 = 23
• 2) 獨逸의 不動産 證券化 現況 = 27
• 2. 日本의 抵當證券과 不動産 證券化 = 28
• 1) 槪觀 = 28
• 2) 不動産 證券化의 意義 = 29
• 3) 抵當證券의 槪念 및 歷史 = 30
• 4) 抵當證券의 構造 = 33
• 5) 抵當證券事業의 動向 = 39
• 3. 美國 不動産擔保制度와 不動産의 證券化 = 39
• 1) 美國의 不動産 擔保制度 = 39
• 2) 美國 住宅抵當債權制度의 沿革 = 41
• 3) 住宅抵當債權 流動化 仲介機關 = 42
• 4) 貯蓄貸付組合과 住宅抵當債權의 流動化 = 44
• 5) 住宅抵當債權 擔保附證券의 發展 = 48
• 6) 商業用 建物의 住宅抵當債權 擔保附證券 流動化 = 50
• 7) 美國 抵當權擔保附 證券의 發行方式 및 節次 = 54
• Ⅳ. 資産流動化制度의 特徵 = 58
• 1. 資産流動化制度의 槪要 = 58
• 1) 資産流動化의 槪念 및 導入背景 = 58
• 2) 資産流動化의 長·短點 = 60
• 3) 資産流動化의 基本類型 = 63
• 2. 流動化 對象資産 = 65
• 1) 流動化資産의 範圍 = 65
• 2) 流動化資産의 特性 = 66
• 3) 不動産의 流動化對象資産에의 編入 = 66
• 3. 資産流動化의 發行關聯 當事者 = 68
• 1) 資産保有者(Originator) = 68
• 2) 特殊目的機構(SPV) 또는 流動化專門會社(SPC) = 69
• 3) 信用補强機關(Credit Enhancer) = 70
• 4) 資産管理者(Servicer) = 70
• 5) 信用評價機關(Rating Agency) = 71
• 4. 資産流動化의 經濟的 效果 = 71
• 1) 資産保有者에 대한 效果 = 71
• 2) 投資者에 대한 效果 = 73
• 3) 原債務者 또는 借入者에 대한 效果 = 73
• Ⅴ. 住宅抵當債權 流動化制度의 特徵 = 74
• 1. 住宅抵當債權 流動化制度의 槪要 = 74
• 1) 住宅抵當債權 流動化制度의 槪念 및 市場構造 = 74
• 2) 導入背景 및 推進經過 = 75
• 3) 資産流動化와 住宅抵當債權 流動化의 관계 = 76
• 2. 住宅抵當債權 流動化會社 = 79
• 3. 住宅抵當債權의 流動化 構造 = 81
• 1) 住宅抵當 貸出債權의 讓渡 = 81
• 2) 證券의 發行 = 81
• 4. 住宅抵當債權 流動化制度 運營과 關聯한 問題 = 82
• 1) 債權讓渡의 對抗要件 特例 = 82
• 2) 住宅抵當債權 流動化와 登記와의 關係 = 88
• Ⅵ. 結論 = 92
• 1. 住宅低當債權 流動化制度 導入時 期待效果 = 92
• 2. 住宅抵當債權 流動化制度의 活用展望 및 關聯業界 動向 = 94
• 3. 問題點 및 向後課題 = 96
• 參考文獻 = 101
• ABSTRACT = 103