UCC상 소유권유보에 관한 연구

A Study on the Retention of Title under UCC

  • 민주희 (계명대학교 경제통상학부 국제통상학전공)
  • 투고 : 2017.07.24
  • 심사 : 2017.08.18
  • 발행 : 2017.08.31

초록

This study describes the retention of title under UCC. UCC ${\S}$ 2-401 prescribes that any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest. It means that the retention of title generates a security interest in the same way like a charge. To be effective, a security interest must be attached or perfected. Once attachment occurs, a security interest is enforceable against the buyer. Once a security interest is perfected, a security interest is enforceable against third parties. Under UCC, a simple retention of title clause is valid as long as it is incorporated into the contract of sale. If the seller acquires a perfected security interest, he as a secured party can enjoy a priority against other creditors. But if a security interest is not perfected but PMSI is afforded, the seller has a special priority. Secondly, under UCC ${\S}$ 9-335 and 9-336, if a security interest under an enlarged retention of title clause is perfected, the seller as the secured party has a valid security interest in the product or mass into which his goods have been mixed or commingled. But in terms of assession of goods, as the seller has a security interest only in his goods, if the seller wants to enlarge his security interest in the whole, a security agreement should cover its intention. Thirdly, under UCC ${\S}$ 9-315, a security interest in proceeds of subsale of goods supplied by the seller is a perfected security interest if the security interest in the original collateral was perfected. But if the proceeds are cash proceeds, it should be identifiable from other funds of the buyer.

키워드

참고문헌

  1. 김재국, "동산의 소유권유보", 민사법연구 제11권 제1호, 대한민사법학회, 2003.
  2. 민주희, "SGA상 "Romalpa" 조항에 관한 연구", 무역학회지 제42권 제2호, 한국무역학회, 2017.
  3. 박훤일, "改正美動産擔保法의 國內擔保法制에 대한 示唆點", 경희법학 제37권, 경희대학교 법학연구소, 2002.
  4. 양형우, "所有權留保에 관한 법적 고찰", 비교사법 제7권 제1호, 한국비교사법학회, 2000.
  5. Grant Gilmore, Security Interest in Personal Property, The Lawbook Exchange Ltd., 1999.
  6. James J. White, Robert S. Summers, Uniform Commercial Code, West Publishing Co, 2010.
  7. M. Bridge, Benjamin's Sale of Goods, Sweet & Maxwell, 2010.
  8. P. S. Atiyah, J. N. Adams, H. MacQueen, Atiyah's Sale of Goods, Pearson Education Limited, 2010.
  9. Rolf B. Johnson, "A Uniform Solution to Common Law Confusion: Retention of Title under English and U.S. Law", Berkeley Journal of International Law, Vol. 12, 1994.
  10. Sean Thomas, "The Role of Authorization in Title Conflicts Involving Retention of Title Clauses: Some American Lessons", Common Law World Review, Vol. 43, 2014.
  11. Steven L. Harris, Charles W. Mooney JR., Security Interest in Personal Property(Case, Problems and Materials), Foundation Press, 2011.
  12. Terry M. Anderson, Marianne B. Culhane, Catherine L. Wilson, "Attachment and Perfection of Security Invests under Revised Article 9: A "Nuts and Bolts" Primer", AIB Law Review, Vol. 9, 2011.
  13. William Davies, "Romalpa Thirty Years on - still an Enigma?", Hertfordshire Law Journal, Vol. 4, 2006.