What are the most common types of claims and receivables over which security is granted in your jurisdiction? What are the most common forms of security granted over claims and receivables? Claims and Receivables The most common type of claim and receivable granted is a loan claim. Rights under contracts, lease receivables, and claims for fees and trade receivables are also common. Common Forms of Security Transfer for security and pledge are the most common forms of security granted over claims and receivables.
Formalities Security over claims and receivables can be created and perfected using any of the following methods: Transfer for security. A transfer for security for a loan is established by a contract between the transferor and the transferee. The transfer for security becomes enforceable against the debtor by giving notice to the debtor or the acceptance by the debtor. The transfer for security becomes enforceable against third parties once the notice is provided to the debtor using the "document of fixed dates".
A pledge is created according to the method of assignment of such rights Article , Civil Code. For example: where a claim is the object of a pledge and a document evidencing such claim exists: creation takes effect on delivery of the document to the pledgee Article , Civil Code ; where a debt payable to order is the object of a pledge: creation takes effect by the endorsement of the instrument and its delivery to the pledgee Article , Civil Code ; where a bearer instrument is the object of a pledge: creation takes effect on delivery of the instrument to the pledgee Article , Civil Code.
On the other hand, if a company provides an obligation with a named obligee as security for the payment of money in accordance with a security agreement, it can register the obligation as collateral security Article 34, ASMPC. In addition, any acquisition, loss, or alteration of a security interest in an obligation by such agreement will only be protected against third parties when the acquisition, loss, or alteration is registered with the collateral security register paragraph 1, Article 35, ASMPC.
Cash Deposits 6. What are the most common forms of security over cash deposits? Common Forms of Security Under Korean law, cash is not recognised as an asset that can be the subject of security. While security can be granted over a bank deposit, this will take the form of security over a contractual claim against the bank with which the deposit account is opened, but not security over the cash itself see Question 5.
Intellectual Property 7. What are the most common types of intellectual property over which security is granted in your jurisdiction? What are the most common forms of security granted over intellectual property? Intellectual Property A patent is the most common type of intellectual property IP over which security is granted.
Secured loans using IP as collateral have recently been gaining significance. However, this has not yet become common in South Korea due to the difficulty of value measurement and liquidation. A pledge with a patent right as its object must be registered with the Korean Patent Register in order to be effective. On the other hand, unlike in the case of a real estate or an account receivable, a pledgee of an IP right can have a compulsory execution of the pledge, under Article of the Civil Execution Act, via a sell order under a special liquidation process or a delivery order.
Problem Assets 8. Are there types of assets over which security cannot be granted or can only be granted with difficulty? Which assets are difficult or problematic when security is granted over them? Future Assets A pledge can be granted over future claims. This is because future claims are recognised as rights that can be assigned or converted into cash and recognising a pledge that has the claim as its object does not contradict the nature of a pledge.
However, a pledge that has a future claim as its object will be considered established at the time the claim was incurred due to the nature of the real right that requires the existence of the object. Fungible Assets Things that are increased, reduced, or changed in a certain warehouse such as raw materials and finished products are considered tangible movable collective property.
Such indeterminate property can be pledged provided the object of the pledge can be specified the moment the pledge is executed. A Supreme Court precedent held that a "thing" see Question 3 can be an object of a pledge if the location, quantity, and type can be specified Supreme Court, Judgment of 26 December , 88Daka Other Assets Other problematic assets include: Claims which, due to their nature, do not allow for assignment Article , paragraph 1, Civil Code.
This includes claims where the contents of the payment completely changes when the creditor changes, for example: claims that require the teaching of or providing support to a specific person; claims where the performance of the claim significantly changes when the creditor changes such as claims against a borrower for use or a user ; and claims where there are special circumstances requiring payment to a specific creditor such as claims taken into consideration for a mutual calculation.
However, even if a claim does not allow for assignment due its nature, if it is a claim that can be assigned with the debtor's consent such as lease right, user's right, or agent's right , the claim can be the object of a pledge once consent is received from the debtor. Claims not assignable due to a party's expression of intent Article , paragraph 2, Civil Code. The assignability of a claim can be prohibited or limited by special agreement between the parties.
Therefore, such claims cannot be the object of a pledge. However, since the special agreement cannot be asserted against a third party acting in good faith for the conditions, see Article , paragraph 2 of the Civil Code , any pledgee who receives the pledge without knowing that the special agreement exists may have a valid pledge.
Claims in which assignment and providing as a collateral are limited by law. A claim of which a foreclosure is prohibited under laws should be, by principle, considered as not allowed to be assigned. Since the performance of a pledge requires foreclosure of the object claim, a claim in which foreclosure is prohibited should be considered as not allowed to be the object of a pledge. Claims in which assignment and foreclosure are prohibited.
This would include: claims for consolidation money Articles , , , and , Civil Code ; claims for child support Article , Civil Code ; rights to receive a payment pursuant to the Labour Standards Act Article 86, Labour Standards Act ; rights to receive insurance payments from a health insurance provider Article 47, Medical Insurance Act ; rights to seek compensation from the state of Korea Article 4, State Compensation Act ; claims for criminal compensation Article 22, Criminal Compensation Act.
Claims in which assignment, foreclosure, and providing as a collateral are prohibited. Claims in which foreclosure is prohibited. Release of Security over Assets 9. How are common forms of security released? Are any formalities required? Security is released when the right to the collateral becomes extinguished. Even where the secured claim is not extinguished, the security right can still be released if the parties agree to this verbally or in writing.
However, in case of a floating sum mortgage, the secured claim has not materialised and therefore the security right can only be extinguished once the right to the collateral is fixed and has been disposed of. In addition, where there are requirements for assertion such as a notice or registration , a security right cannot be asserted against a third party unless such requirements are satisfied.
Is it common in your jurisdiction to take security over the shares of an SPV set up to hold certain of the borrower's assets, rather than to take direct security over those assets? Obtaining shares of a special purpose vehicle SPV that has obtained the debtor's asset, as collateral in order to obtain a security right, is unusual in Korea.
However, taking a direct security right over the debtor's asset is more common. Following the Asian Financial Crisis in , laws relating to liquidation of assets can be put into effect quickly to clean up financial institutions' distressed assets and, during a clean-up, the debtor's assets can be transferred to the SPV and the SPV's shares can then be issued.
However, this is a structure that pools the assets and liquidates them via issued shares, and the SPV is not merely being established just to obtain the security right. Quasi-Security What types of quasi-security structures are common in your jurisdiction? Is there a risk of such structures being recharacterised as a security interest? Sale and Leaseback Sale and leaseback is when a company or person sells its real estate, facilities and so on for cash and enters into a long-term lease for those assets.
When sales and leaseback is performed, the company can procure funds under better conditions than what would be possible with its current credit score, so that the problem of the debt repayment can be resolved. Therefore, this method is often used by companies that need to improve their financial structure.
Sale and leaseback is also practical for the company because it reduces the risk of having to find a new lease space and saves on moving costs. However, after the company conducts sales and leaseback: The company's ability to respond to expansion of space or any increase in the number of employees due to the business growth in the future becomes less flexible. Taxes must be paid at the time of sale. The company bears the risk of any potential increases to the lease payments in the long term.
Factoring A factoring contract is where a factoring company usually a financial company receives an assignment of a current or future claim that is incurred by a creditor's business activity and provides financing to the creditor in return. The factoring company provides financing to the creditors, but also provides services such as: The management and redemption of the claims.
Credit review of the debtors. The taking over of the credit risk. Providing business information. The handling of other business matters on behalf of the creditor. However, if the debtor becomes insolvent, the claim cannot be redeemed and the factoring company or creditor may suffer unexpected damage.
Hire Purchase An instalment transaction means, regardless of the name and form of the contract, the purchaser of the tangible movable property or service makes payment in three or more instalments throughout a period of at least two months, and the object delivery transfer occurs prior to full payment Article 2, Instalment Transactions Act.
Retention of Title A retention of title sale is a sale in which the seller delivers the object to the purchaser but retains ownership over the object until payment for the object is made in full. The agreement will include a special provision that automatically transfers ownership to the purchaser when payment for the object is made in full. Retention of title agreements can be enforced by the seller terminating the sales agreement and demanding return of the object.
Retention of title sales are often used in transactions that are paid in instalments. Other Structures A repurchase agreement is an agreement in which the seller is entitled to repurchase. In this context, a "repurchase" means the seller has a right to repurchase under a sales agreement and exercises this right to repurchase the object from the purchaser.
The repurchase serves as a second sale, in which the seller repurchases the object, and a tool that the seller can use to recover the object by repaying the loan. The repurchase as a tool for sales with security is subject to the Provisional Registration Security Act. Guarantees Are guarantees commonly used in your jurisdiction? How are they created?
A guaranty is usually provided by a representative of a small to medium-sized enterprise when the enterprise borrows from a financial institution. The guarantor's intention is in writing, along with the guarantor's name with a seal or a signature. An electronic expression of the intent to provide a guaranty is not effective Article , Civil Code. However, the practice of providing guarantees can limit the establishment of an enterprise and make it difficult to re-start a business, so the South Korean financial authorities are taking steps to steps to limit the practice of requiring a guaranty.
Risk Areas for Lenders Do any laws affect the validity of a loan, security or guarantee or the terms on which they are made or agreed? Financial Assistance There are no specific financial assistance rules in the Commercial Code. However, the Commercial Code provides that companies can only purchase their own shares in limited circumstances Article Similarly, the Commercial Code allows subsidiaries to purchase the shares of their parent companies only in limited circumstances Article , paragraph 2.
Corporate Benefit A subsidiary providing a guarantee for its parent company's loan is not directly in violation of the Commercial Code, under which there are no specific provisions regulating this. However, if a director or officer of the subsidiary has the subsidiary provide a guarantee or collateral to a parent company without providing any consideration to the subsidiary: The act may be found to be in violation of the duty of care with respect to the subsidiary.
The director may be liable for damages under the Civil Code or punished for professional malpractice under the Criminal Code. Loans to Directors If there is a conflict of interest between the director and the company, the director must have the approval of the board of directors board in relation to both the direct transaction between a company and its director and the transaction between a third party and the company. A direct transaction between the company and its director is invalid if carried out without approval from the board.
On the other hand, if the company wishes to argue that the transaction between a third party and the company is invalid, the company must prove that the third party was aware of the lack of board approval, or was grossly negligent in not knowing of the lack of such approval. If the debtor arbitrarily pays the interest beyond this limit, the amount in excess of the limit can be applied towards the principal, and the remainder can be requested from the principal if the amount is fully paid Article 2, paragraph 4, Interest Limitation Act.
The purpose of the SAPG is to foster reasonable guarantee agreement practice. The purpose of the SAPG is to protect, from suffering economic and mental harm, guarantors who provide guarantees without consideration but rather out of courtesy Article 1, SAPG.
The maximum amount of a guaranty must be specified in writing whenever a guaranty agreement is made Article 4, SAPG. If a guaranty agreement does not specify the period of guaranty, the period will be deemed to be three years Article 7, SAPG. A guaranty agreement that is unfavourably in violation of these requirements for the guarantor is invalid. Can a lender be liable under environmental laws for the actions of a borrower, security provider or guarantor?
The proprietor, occupant, or operator of a facility subject to the control of soil contamination that caused the soil contamination as at the time the soil contamination occurred. The person who comprehensively succeeded the rights and liabilities of the person that caused the soil contamination or the aforementioned proprietor, occupant, or operator due to a merger, inheritance or other reason.
The person who previously owned or presently owns or occupies land on which the soil contamination has occurred. Article 10, paragraph 4, SECA. A lending institution would therefore not be liable for the damage due to the contamination. Structuring the Priority of Debts What methods of subordination are there? Contractual Subordination Subordination agreements are rarely used. However, in a bankruptcy proceeding, the creditor and debtor may agree to repay the creditor after repaying another creditor Article , paragraph 2, Debtor Rehabilitation and Bankruptcy Act.
Such an agreement can also be agreed prior to the initiation of bankruptcy proceedings. However, when there is an ordinary creditor who is outside of the subordination agreement in a bankruptcy proceeding, the subordination agreement will have no effect against the ordinary creditor. Structural Subordination Structural subordination is rarely used in Korea when making loans. However, a bankruptcy proceeding structurally places aspects such as the interest rate, damages due to a delay and so on after the other bankruptcy claims, so there will be some structural subordination in a bankruptcy scenario Article , paragraph 1, Debtor Rehabilitation and Bankruptcy Act.
Intercreditor Arrangements Intercreditor agreements are common. However, the existence of an intercreditor agreement relating to subordination is rare if at all. The Corporate Restructuring Promotion Act CRPM is intended to foster a speedy and smooth process for enabling workouts for companies facing signs of insolvency. According to the CRPM, when the debtor becomes insolvent, the company's creditors are required to establish a council of the company's financial creditors.
The council will then inspect and regulate the entering into and performance of inter-creditor agreements with respect to the corporate restructuring Article 22, CRPM. Debt Trading and Transfer Mechanisms Is debt traded in your jurisdiction and what transfer mechanisms are used?
How do buyers ensure that they obtain the benefit of the security and guarantees associated with the transferred debt? Financial institutions often use debt trading to, for example, efficiently handle non-performing loans by selling loan receivables. Since a claim can be assigned Article , Civil Code , a creditor can transfer the claim via an agreement with an assignee. Furthermore, even a conditional or future claim can be assigned provided a basic legal relationship exists and the content is clear Supreme Court, Judgment of 29 May , 96Da In addition, claims can be transferred to an assignee without changing the claim itself by simply entering into and closing a claim assignment agreement.
Once this agreement is entered into, the right that uses the claim as collateral such as a mortgage, guarantee and so on will also be transferred to the assignee along with the claim. However, mortgages that need to be registered a floating sum mortgagee, for example must complete an additional registration in order for the assignee to become the creditor.
On the other hand, in order to assert the assigned claim against the debtor, the creditor must provide notice to or receive consent from the debtor. In order to assert the assigned claim against a third party, a notice using a certificate of the confirmed date or consent is required. Agent and Trust Concepts Is the agent concept such as a facility agent under a syndicated loan recognised in your jurisdiction?
The agent concept is recognised and syndicated loans under which multiple financial institutions create a syndicate to provide a loan to the debtor are widely used in Korea. An agent bank delegated the obligation to administer and manage a syndicated loan has an agency relationship with the participating banks, and the specific range of delegation is limited to what has been expressly delegated by the agency clause in the syndicated loan agreement Supreme Court, Judgment of 23 February , Da Therefore, a facility agent can only enforce on behalf of the other syndicate creditors if the agency clause provides a basis for such enforcement.
Is the trust concept recognised in your jurisdiction? The trustee bears the rights and responsibilities with respect to the trusted assets and therefore has the authority to manage and dispose of the trusted assets and perform any act to achieve the goal of the trust Article 31, Trust Act. Therefore, the trustee is authorised to enforce the rights in relation to the trust assets.
Enforcement of Security Interests and Borrower Insolvency What are the circumstances in which a lender can enforce its loan, guarantee or security interest? What requirements must the lender comply with? If the debtor's obligation to make payment falls due but the debtor fails to make the payment, the creditor can enforce its loan, guarantee or security interest.
If the creditor enforces the guarantor's obligation pay on behalf of the debtor, the guarantor can assert that the creditor should demand payment from the debtor and enforce the right on the debtor's asset first provided it can prove the debtor has the ability to pay and that the enforcement would be feasible. However, if the guarantor has assumed the payment obligation jointly with the debtor, such assertion cannot be made Article , Civil Code.
Methods of Enforcement How are the main types of security interest usually enforced? The default time limit is 25 minutes but you can modify the time limit if the network has many routes that are added and deleted from the cache. The bridge builds its own address table, which uses MAC addresses only. Passive hubs are central-connection devices that physically connect other devices in a network. They send messages out on all their ports to the devices and operate at Layer 1 but do not maintain an address table.
Layer 2 switches determine which port of a device receives a message that is sent only to that port. However, Layer 3 switches are devices that build an ARP cache table. RARP often is used by diskless workstations because this type of device has no way to store IP addresses to use when they boot. The only address that is known is the MAC address because it is burned into the hardware.
The following figure shows how RARP works. Figure 2. The following are the most important limitations: Because RARP uses hardware addresses, if the internetwork is large with many physical networks, a RARP server must be on every segment with an additional server for redundancy. Each server must be configured with a table of static mappings between the hardware addresses and IP addresses. Maintenance of the IP addresses is difficult. Proxy ARP Proxy ARP enables a device that is physically located on one network appear to be logically part of a different physical network connected to the same device or firewall.
Proxy ARP allows you to hide a device with a public IP address on a private network behind a router and still have the device appear to be on the public network in front of the router. By hiding its identity, the router accepts responsibility for routing packets to the real destination. Proxy ARP can help devices on a subnet reach remote subnets without configuring routing or a default gateway. When devices are not in the same data link layer network but in the same IP network, they try to transmit data to each other as if they are on the local network.
However, the router that separates the devices does not send a broadcast message because routers do not pass hardware-layer broadcasts and the addresses cannot be resolved. The local device believes that it is directly connected to the destination, while in reality its packets are being forwarded from the local subnetwork toward the destination subnetwork by their local device.
By default, proxy ARP is disabled. Use this feature only on subnets where hosts are intentionally prevented from communicating directly by the configuration on the device to which they are connected. Glean Throttling If the Address Resolution Protocol ARP request for the next hop is not resolved when incoming IP packets are forwarded in a line card, the line card forwards the packets to the supervisor glean throttling.
The supervisor resolves the MAC address for the next hop and programs the hardware. If the ARP entry is not resolved before a timeout period, the entry is removed from the hardware. It is described in RFC Existing connections are not affected when this feature is turned on or off. ICMP also provides many diagnostic functions and can send and redirect error packets to the host.
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