담보법의 현재와 미래 :민법 시행 50주년을 맞이하여

The Civil Code of Korea, like those of most East Asian countries, is modeled after the modern civil codes of the continental European countries. The Civil Code specifies mortgage, pledge, and retention right as “security rights.” Among the three types of security rights, the “mortgage” represents a right to obtain satisfaction of a claim in preference to other creditors, out of an immovable property furnished by a debtor or by a third party as collateral without transferring its possession (Article 356). The Civil Code has introduced the provision of the keun-mortgage, which stipulates that a mortgage can be created by settling only the maximum amount of the debt to be secured and reserving the determination of the debt in the future (Article 357). The Civil Code contains 17 articles provided for the mortgage and only one of them deals with the “keun-mortgage.” However, in practice, the mortgage is rarely used while the keun-mortgage is the form more frequently utilized. The pledge consists of two types: movable property pledge and pledge of rights. The “movable property pledge” allows a pledgee to hold possession of the movables which he or she has received from a debtor or a third party as collateral for his or her claim, and to obtain satisfaction of such claim out of the movables in preference to other creditors (Article 329). Receivables and stocks can be the object of a “pledge of rights” (Article 345). When a possessor of a property or a valuable instrument belonging to another person has any claim arising in respect of such property or instrument and if payment of the claim is due, he or she may have a “retention right” to retain its possession until the claim is satisfied (Article 320). The retention right can be established on both immovable and movable properties. In Korea, security rights law is an area currently undergoing substantial changes in response to the rapidly-evolving financial market. In February 2009, Korea’s Ministry of Justice launched the Civil Code Amendment Committee to review the Civil Code in its entirety and to draft amendments to the Code. For the year of 2009, the Ministry of Justice had planned to focus only on the revision of the “General Parts of the Civil Code” but added security rights law on its agenda for the year despite the fact that security rights law falls under the category of real rights law. They found improving the existing security rights law to be an urgent task. Meanwhile, it is particularly worth noting that the Act on Security of Movable Property, Receivables, etc. has been passed by the Legislature in May 2010. The Act is expected to allow registration of security rights on movable properties and receivables once it takes effect in June 2012. It is a groundbreaking legislation as it allows registration of security rights in cases where movable properties or receivables are put up as collateral. The Act is also significant in the sense that a nation whose legal system is built upon continental civil law traditions has begun to take up elements of the American legal system. I first touch upon the security rights specified in the Civil Code, and then examine three topics that show the changes that have taken place since its enactment: i) keun-mortgage, which is the most important form of immovable security rights in Korea, ii) retention right, which becomes an important topic of the reform of the Civil Code, and iii) movable property and receivable as collateral.