Modernizing the Law of Secured Transactions in Taiwan – Introduction of Floating Charge

• Main Authors: Xinag-Xuan Lu, 呂相璇
• Other Authors: Ching-Ping Shao
• Format: Others
• Language: zh-TW
• Published: 2018
• Online Access: http://ndltd.ncl.edu.tw/handle/6cxu2v

碩士 === 國立臺灣大學 === 法律學研究所 === 106 === In order to enhance the quality of business regulation environments across economies, The World Bank public Doing Business project to provide objective measures of business regulations and their enforcement every year, encouraging economies to compete towards more efficient regulation. Getting credit is one of the topic in the project, which consists of two index. One is depth of credit information index, which is about the coverage, scope and quality of credit information available through credit registries and bureaus in a country; the other is the strength of legal rights index, which is about legal rights of borrowers and lenders in secured transactions and bankruptcy laws. In Doing Business 2018, Taiwan only got 2 points out of 12, far below the average of East-Asia and the Pacific. In fact, Taiwan only got 4 points in legal right index for a long time. The reason why we can’t get high score is that in our legal system, it is not allowed to grant a non possessory security right in substantially all of businesses’ assets or extend to future or after-acquired assets and we should specify the collateral in detail. It means that we do not have floating charge which is widely used in the common law countries. To get more points in the legal right index, there are many proposals and drafts with regard to floating charge, but we didn’t do an overall reform to improve the law of secured transaction, so our legal right index still very low. Floating charge origin from equity law in England, and it covers all of the assets of the grantor, including fluid assets, future assets. But in Taiwan, there are many doubts toward this security device. Some think that floating charge, springing from the common law, will not fit with the civil law system. Others think there are many finance devices in our legal system, so we don’t need to introduce another type of security right. Besides, the floating of collateral may enhance the risk that grantor try to waste the value of collateral. My research focuses on the introduction of floating charge in order to deal with those controversies. After collecting literature on floating charge from England、U.S.、United Nations and other countries, I use comparative law analysis to figure out the core of floating charge, and its’ supporting measure or risk control mechanism, which I use to analysis drafts and proposals concerning floating charge. Lately, I will provide my own proposal to introduce floating charge, which is based on the overall reform of the Personal Property Secured Transactions Act, and extend the object of secured transactions to the future assets, fluid assets and even all the assets of grantors. Some supporting mechanism will also be found.