1996 Fiscal Year Final Research Report Summary
Floating Charge in Japan-A Theoretical and Practical Study
| Project/Area Number |
06620031
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Civil law
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| Research Institution | Osaka University |
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Principal Investigator |
CHIBA Emiko (福永 恵美子) Osaka University, Department of Law, Associate Professor, 法学部, 助教授 (70113587)
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| Project Period (FY) |
1994 – 1996
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| Keywords | Floating Charge / Transfer for security / Accounts receivable financing / Security interest in personal property / Secured transaction / Floating lien / Inventory financing / Entity theory |
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| Research Abstract |
It is said that one can't have a personal property of "an aggregate of things (Sachinbegriff)", but one can own only each things, which consist of an aggregate. It is pointed out that the concept of "an aggregate of things" is against (section) 85 Japanese Civil Code that only corporeal objects are things. However, in practice, we make good use of an inventory financing (ex.merchandiseor stock in trade). After 1979 the Japanese Supreme Court judged an inventory in the aggregateto be a security for a loan (so-called floating lien).
Numerous attempts have been made by schoiars to consistently explain two effects of inventory financing. The first one is that the transferee for security of "an aggregate of things" can set up his own right against others even before the enforcement on of his security interest ; the other is that he can't set up against the person whom the debtor=owner assigned each movable properties, which are component parts of "an aggregate of things". This problem is sti
… More
ll in controversial.
We obtained the following results from our project. in order to explain the former effect, we must admit the concept of "an aggregate of things"(socalled "entity theory"). Opinions are divided among scholars on this concept. The concept of "an aggregate of things" is, however, necessary (1) to explain the agreement about after-aquired property (cf.UCC (section) 101 (37)), and (2) to understand that after-aquired properties have been already perfected at the time when the debtor=owner furnished security on an inventory, inspite that each movable properties didn't first consist of "an aggregate of things". If we accept thisconcept, it is possible to explain the latter effect.
We should make it clear what we intended by the statement of this concept. Theterm of "an aggregate of things" can't be defined as one thing (res), but can be defined as "a floating mass" (an object of only security interest), which continues to exist inspite of changes in its component parts. The floating mass is not a corporeal object. Thus, the floating mass is possible to be perfected only when movable properties, which consist of the floating mass, exist closely to each others, and the whole of the floating mass is more greater than all parts. Less
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