담보권신탁과 위탁자의 도산: 별제권 및 회생담보권의 행사주체

초록

A security trust, which concentrates security rights in the name of a trustee, has clear advantages in reducing transaction costs and centralizing the enforcement channel. When the settlor becomes insolvent, however, the fact that the security right is held by the trustee while the secured claim belongs to the beneficiary creates a structural gap between the allocation and the exercise of procedural rights in insolvency proceedings (rehabilitation security rights and rights of separate satisfaction). In light of the fact that a rehabilitation security right is, in substance, a claim secured by collateral, and that the right of separate satisfaction is likewise tied to the extinction of the secured claim and the determination of any deficiency following enforcement, it is appropriate to conceptualize the underlying entitlement with the beneficiary, as secured creditor, at its center. The question is who should act within the procedure. If the very purpose of a security trust is to make the trustee the single point of contact for the security package, the trustee must also be able, in insolvency proceedings, to represent the beneficiary’s secured claim procedurally by filing, verification, voting, enforcement, and receipt of distributions. The existing legislative policy of centralized treatment in secured bond trusts, the comparative-law trend of expressly granting procedural powers to security agents as in the French security agent regime, and the Japanese model of partial codification and interpretative supplementation all point in the same direction. Against this backdrop, this article proposes to introduce into theTrust Act a default rule conferring on the trustee a “power of procedural representation in insolvency proceedings,” and to clarify in the Debtor Rehabilitation and Bankruptcy Act the trustee’s procedural standing in cases involving security trusts. Such reforms would transform the security trust from a device that exists merely at the level of statutory definition into an institution that actually operates even in insolvency, thereby providing a basis for enhancing the competitiveness of Korean law in modern financing transactions such as syndicated loans.

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