小型船舶 擔保權 確保方案에 관한 硏究

Abstract

According to our civil law, ships come under the category of movable assets but, vessels that weigh over 20 tons have a larger economic value in so much that it takes on the characteristics of immovable property. Therefore, they are acknowledged to have the power of mortgage settlement armed with a registration system under a legally declared value method. Any forcible execution regarding this issue is carried out by applying the forced sale by auction regulations (Civil Action Execution Law Clause 172) of that of immovable property. However, ships that weigh less than 20 tons are excluded from the registration system and in the case of forcible execution, auctions are carried out under the rules of corporeal movables execution. The forced execution system not only protects the creditors in obtaining credit satisfaction rapidly and conveniently with low costs but it also prevents any unjust violation in regard to the debtor's dignity and financial means. By doing this, it takes on the role of protecting the debtor as well as giving the greatest satisfaction to the creditor with the least amount of casualties. While it takes upon the responsibilities of preventing any social and economic losses due to the forced execution, it also seeks to reach an appropriate understanding between the creditor and the debtor at the same time. In other words, to obtain an ultimate satisfaction of the credit, it should seek out a basic arbitrary fulfillment on the part of the debtor but if there is no realization of the arbitrary fulfillment, they have no choice but to solve the matter through the means of claiming for a forced fulfillment. The reality is that such judicial decision followed by these actions or the forced execution method by the imperium is prominently being used in retrieval of credit. This kind of forced method to carry out the fulfillment of credit is the forced execution system and its process and method is defined in the civil action execution law. This leads to a very specific method of finally retrieving the credit. Then again, in the case of small-sized vessels that have been transferred ownership rights through partial ownership (Civil Law Clause 189), and it is the case where a general creditor (of the ownership transferee) chooses to carry out a forced execution, it is possible that a forced execution will be concluded without the knowledge of the creditor who is entitled to the security right. Even if he had previous knowledge of the forced execution, the problem of retrieving only a portion of the credit due to the proportional distribution according to the confiscation bidding might occur. In the meantime, the number of problems generated by the execution of small-sized vessel security rights which has transferability which takes part in the majority of the credit loan transactions in regards to the maritime policy fund are far from being minor. Firstly, no notification is given to the creditor entitled to the security right in the process of forced execution. Secondly, in the case where an innocent third party is awarded the small-sized vessel followed by the auction through the process of a forced execution, a problem of forfeiting the effectiveness of the transferable security right might occur. Thirdly, there is the problem of the security entitled creditor not being able to protest against the forced execution regarding the provisional seizure of corporeal movables requested by the general creditor. Fourthly, in the case where no notarization was made regarding the transferable security right, there is the problem of not being able to demand for the priority reimbursement right or ownership. Fifthly, there is a problem in the declared method regarding small-sized vessels. This paper seeks to look into the problems of the presently existing execution of the security rights regarding small-sized vessels based on the above awareness. It ultimately aims to search out a method to secure the rights of the transferable security right of small-sized vessels for the purpose of credit retrieval. It is hoped that this kind of effort will not only secure the rights of the creditor entitled to the security rights related to the small-sized vessel but contribute to the protection of property rights of the debtor. Generally speaking, a vessel that weights more than 20 tons would be treated as a fictitious property and the creditor entitled to its security right may be protected through the means of publically declared system of registration but in the case of small-sized vessels that weigh less that 20 tons with transferable security right, there is no publically declared method according to the presently existing laws. In consequence, in the case of forced execution, it is treated under the corporeal movables forced execution. However, in the case of automobiles, regardless of its type, it may be attached to a publically declared method such as ownership or mortgage rights under the automobile registration ledger in the event of a forced execution. It is carried out within the boundaries of an immovable property forced execution auction which differs from the treatment of small-sized vessels. Therefore, this paper aims to search out methods to secure the rights of small-sized vessels by mainly using the method of literature review. In the first chapter, problems will be raised and the aim of this study as well as its scope will be clearly defined. In the second chapter, issues regarding the actual transactions of security rights of small-sized vessels will be closely looked into. By doing a comparative analysis of declared methods of small-sized vessels in chapter 3, it will lead into chapter 4 which will suggest some future methods regarding the obtaining the security rights of small-sized vessels weighing under 20 tons which in actual fact is the main theme of this paper. Conclusions will be drawn in Chapter 5.