양도담보와 대내적 소유권 개념에 대한 고찰

• 영문명: A Study on the Concept of “Relative” Ownership in the Security by Means of Transfer
• 발행기관: 한국민사법학회
• 저자명: 이소은(Lee, So Eun)
• 간행물 정보: 『민사법학』제76호, 35~71쪽, 전체 37쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2016.09.30

영문 초록

Security by means of transfer is a type of security which entitles the obligee the ownership of the secured property furnished by the debtor or a third person. As such, security by means of transfer takes the form of transfer to secure the debt. Such discrepancy between the form and substance has given rise to a number of complex issues regarding the right of the parties concerned. Korean Supreme Court has attempted to solve such issues by recognizing the concept of “relative” ownership. Supreme Court decisions dealing with the security by means of transfer hold that the settlor has the ownership in the relation to the security holder, and that the security holder has the ownership in the relation to any third party. Such doctrine has been heavily criticized, as it does not seem compatible with the concept of “absolute” ownership the Korean Civil Code stipulates. However, Korean Supreme Court has maintained the doctrine when the security by means of transfer is at issue. This paper examines the validity of the doctrine by studying a particular case, Supreme Court Decision 2014Da21410. The concept of relative ownership seem to render the judgment on the right of settlor, security holder, or the third party concerned particularly difficult. It also arises problems in explaining the reasoning behind several Supreme Court Decisions.

목차

[대상판결]

Ⅰ. 사실관계

Ⅱ. 소송의 경과

Ⅲ. 대법원의 판단

[연 구]

Ⅰ. 서론

Ⅱ. 양도담보의 법적 성질에 관한 학설 대립

Ⅲ. 양도담보에 관한 판례 이론의 내용

Ⅳ. 대상판결에 대한 검토

Ⅴ. 결론

<참고문헌>

키워드

양도담보 신탁적 소유권 이전설 양도담보설정자의 권리 대내적 소유권 선박등기 ecurity by means of transfer the right of settlor relative ownership ship registry