Secured Transactions Law Reform in Japan s Lost Decades

Transcription

1 Secured Transactions Law Reform in Japan s Lost Decades 2014 UNCITRAL South Asia Seminar September 2014 Colombo, Sri Lanka Hiroo Sono Professor of Law, Hokkaido University, Japan

2 Secured Transactions Law & Practice under the Civil Code of 1896 (1) JCC of 1896 still in force as originally enacted (with few exceptions). Heavy reliance on immovables as collateral. High and stable value of land. No realistic non-possessory security right in movables under JCC Only possessory pawn/pledge available for movables. Equipment and inventory financing difficult under Civil Code. 2

3 Secured Transactions Law & Practice under the Civil Code of 1896 (2) Bank practice of taking bank deposits as collateral acceleration clause + setoff upheld by court. Practice of Security Interests in movables Retention of Title Sales Transfer by way of Security (joto-tanpo) Transfer of title, but no transfer of possession. Perfection achieved by constructive transfer of possession aggregated goods or circulating inventory 3

4 Secured Transactions Law Reform in the Lost Two Decades: Overview Burst of the Bubble Economy (early 1990s) Land price hike, and its depreciation. Resulted in enormous amounts of bad loans. Lost Two Decades [Kozuka 2014] Insolvency Law Reform (late 1990s ) Ex post solution to prevalent bad loans E.g., extinguishment of SR in reorganization Secured Transactions Law Reform (mid 2000s) Ex ante perspective: facilitation of financing Sideline: Reason for postponed accession to the CISG (2008) 4

5 Reform of Perfection Rules (1) UNCITRAL secured transactions instruments? Chronically, no. Underlying principles, no Act on Special Rules to the Civil Code Concerning the Perfection of Transfer of Receivables 2003 METI Report on Inventory Financing 2004 Act on Special Rules to the Civil Code Concerning the Perfection of Transfer of Receivables and Movables Perfection by registration of transfer (not of SI), indexed by transferor But, available only when transferor is incorporated 5

6 Reform of Perfection Rules (2) Method to achieve perfection (third party effectiveness) by registration General Registry (indexed and searchable by identifier of the Grantor) Specialized Registry (indexed and searchable by encumbered asset) In Addition to the Civil Code method of: Transfer of Possession (Civil Code) Actual transfer of possession Constructive transfer of possession Creates a dual perfection system 6

7 (1) Insufficient Public Notice Problem vis-à-vis Prospective Competing Creditors Registration and (constructive) transfer of possession given equal weight: earlier in time has priority Registration of transfer not security interest Not all security interests in movables can be registered: retention of title Basically, perfection for transfer by way of security arrangements Denial of substance over form 7

8 (2) Third Party Purchasers Third party purchasers of encumbered asset from transferor/grantor favored over registered transferee/secured creditor Bona fide purchaser (Art 192 JCC) beats registration Purchaser in the ordinary course of business beats registration (Supreme Court Decision, July 20, 2006, Minshu [security interest in inventories (aggregated goods)]) 8

9 (3) Cumbersome registration requirement Transferor must be a registered incorporation to avoid problem of indexing/searching Description of encumbered asset must be detailed Description by type of asset ; AND 1. characteristics that makes the movable distinguishable from others (e.g., serial numbers); OR 2. location of the movable Description such as all assets not allowed under Japanese law 9

10 (4): Limits to Search General public may obtain only a Summary of the File which shows the filing activities of the grantor, without identifying the encumbered asset. Only the Grantor, SC, and other interested parties (such as attaching creditor) may request full disclosure. 10

11 Shortfalls (5) Limited Access Electronic Registry (but filing/searching in person or by mail available at Tokyo s Nakano Registration Office) Time of Operation Not 24 hours/day, 7 days/week Electronic Registration: Weekdays 8:30-17:15 JST(movables), 8:30-21:00 JST (receivables) Electronic Search : Weekdays 8:30-21:00 JST, some Saturdays 8:30-17:00 JST Little consideration for international transaction. 11

12 Why so timid? In contrast to UNCITRAL s robust functional, integrated, and comprehensive approach. Why? Negative image of collateralizing movables? Providing collateral as signal of financial trouble Culture? Resistance to change in existence practice. Sideline: Shrinking ambition in the ongoing Civil Code (Obligations Law) Reform. Taking precision too seriously? Sideline: 2000 E-commerce enabling legislation meticulously listing every statutory writing requirements that should be amended to allow electronic documents. 12

13 Implications for UNCITRAL Changing role of UNCITRAL: From unification, harmonization, to modernization Law as an instrument of industry policy and economic growth Finding the right addressee: 13

14 Thank you! 14