동산⋅채권 담보등기제도와 선의취득에 관한 비교법적 고찰 - 영미법을 중심으로

Abstract

Where a debtor provided a security interest in his movable asset for his creditor and registered the security interest and subsequently transferred the movable asset to a bona fide purchaser, who would have the priority between the registered creditor and the bona fide purchaser? If a registered security interest in a movable asset might become unperfected after the movable asset is transferred to a bona fide purchaser, the validity of a security interest were to be invalidated and terminated by any subsequent transfer. Then, the security interest in the movable asset could not be protected. If a bona fide purchaser would be burdened the obligation to search the security interest registry, a bona fide purchaser of the movable asset would take the movable asset subject to the security interest of the creditor previously registered because the bona fide purchaser did not fulfill his obligation to search the registry. If so, the registered security interest in the movable asset would continue to be perfected even after the movable asset is transferred to a bona fide purchaser, and the creditor would be protected against a bona fide purchaser. Where a debtor transfers its movable asset to a bona fide purchaser and the bona fide purchaser transfers the movable asset to another third party, how far a registered security interest in a movable asset should continue to be perfected after the movable asset is transferred again and again to third parties away from the original debtor? In such situation, how can a bona fide purchaser know that the movable asset is subject to a creditor’s security interest? This problem has its origin in the debtor (or security provider) - indexed registration system, under which a would-be purchaser can only search the registry upon the name of a debtor (or security provider). If a potential purchaser would have the obligation to search the security interest registry against only the direct counterparty but not against the transferor of the transferor, the third party takes the movable asset free of any security interests registered against the original debtor. If so, registration of a security interest might lose its effectiveness after two consecutive transfers of a movable asset. Under English law, once a person, who does not have actual or constructive notice of a prior security interest, provides value and acquires a movable asset, takes priority over the secured creditor of the prior security interest. This doctrine is often called the 'bona fide purchaser' rule. Under U.C.C. Article 9 and the PPSAs of Canada, Australia and New Zealand, where the selling is in the ordinary course of the seller's business a buyer in the ordinary course of business takes free of a security interest created by the seller, even if the security interest is registered and the buyer knows of its existence. Thus, a secured creditor who registered his security interest could be subordinated to a buyer in the ordinary course of business from a seller in the business of selling goods of that kind. In Korea, a bona fide purchaser could be protected by the bona fide purchase provision of Article 249 of the Korean Civil Code if the purchaser was unaware of the registration of prior security interests for good cause in the ordinary business of the purchaser.