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Issues of the Rights of Secured Claim on the Movable Property and Secured Claim Act

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2013, 1(1), pp.91-131
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

HyeonSon, Kim 1

1호서대학교

ABSTRACT

Generally, a secured transaction is a loan or a credit transaction in which the lender acquires a security interest in collateral owned by the borrower and is entitled to foreclose on or repossess the collateral in the event of the borrower’s default. A security interest is typically granted by a “security agreement.” The security interest is established with respect to the property, if the debtor has an ownership interest in the property and the holder of the security interest conferred value to the debtor, such as giving a loan. Perfection is typically achieved by filing a financing statement with judicial government located at a jurisdiction where a corporate debtor is incorporated. Perfection can also be obtained by possession of the collateral, if the collateral is tangible property. Absent perfection, the holder of the security interest may have difficulty enforcing his rights in the collateral with regard to third parties and other creditors who claim a security interest in the same collateral. Currently, in Korea, in accordance with developed countries legislative trends, the Movable Property & Secured Claim Act is introduced to provide the medium-sized firm’s convenience of corporate business activity such as fund raising using movable property and claims for the securing the suitability and effectiveness. However, it may not be evaluated the legislation is prepared to help harmonious using the system with Korea’s circumstances and modern financing transactions. Because there are clauses scattered out of the main reason for the using security system of the claims and movable property and international trend. In other words, the act restrict the business entity which aims using the system and the object of the application that result in restrain the use of asset value in the credit transactions. In addition, even though the secured claim is collateral right but it is separately regulating the requirement of counteraction against third party and third-party debtor, there are unexpected damages occurred in the priority secured claim-holder by the third-party creditor payment to the subordinates. Therefore, it is clearly desire to establish expected priority rule and to make balance interest among the interest-holders. Security interests may be taken on any type of property. The law divides property into two classes: personal property and real property. Personal property is defined as any property other than real property. Here, the latter is subject to the discussion in this article. A security interest is a property interest created by agreement or by operation of law over assets to secure the performance of an obligation, usually the payment of a debt. A security interest grants the holder a right to take a remedial action with respect to the property, upon occurrence of certain events, such as the non-payment of a loan. The creditor may take possession of such property in satisfaction of the underlying obligation. In this article, I examined the arguable difference issues regarding the clauses compared with various jurisdictions and trying to analysis the suggestions. I also would like to propose some useful legislative tips for the future amendment of the act after research and study of the debated legal issues.

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