Digitale Registerpublizität im Recht der Mobiliarsicherheiten

Diskussionen über die Registerpublizität der Abtretung in der Schuldrechtsreform

Abstract

Mobile securities are of growing importance in Japan. The legal concepts of “transfer of securities” and “assignment of securities” have long been recognized by the courts and by academics. They are used often in practice and serve to facilitate the financing of small- and medium-sized companies. Under Japanese law, the transfer and assignment of things follows the consensual principle, which means that the legal transfer between the parties occurs upon their agreement in the form of the conclusion of a contract. Nevertheless, the assignment to third parties does not come into effect solely on the basis of a contract. In order to be able to enforce the assignment against third parties – including the debtor – further requirements need be fulfilled. One necessary condition is the notification of the assignment by the assignor to the debtor, or, alternatively, the debtor’s consent to the assignment. Both the notification and the debtor’s consent need to be in the form of a document bearing a conclusive date. Under this private law construction, the debtor has the role of an “information provider”.

In 1998, a special register was established as a publication method for the assignment of securities in order to provide an alternative mechanism. This system was extended to encompass transfers of securities in 2004. Under this system, the registration of an assignment or transfer is a requirement for its enforceability. The purpose of this mechanism is the facilitation of business financing through the transfer or assignment of securities. The private law system of notice or consent and the special law system of registration coexist, so that the assignor may choose either mechanism. While the private law system burdens the debtor for having to act as an information provider, the registration system is more costly. A number of proposals that were made to improve these systems during the discussions of the civil code reforms are presented by the author. In the end, however, no changes were made and the double-track system remains in place.

(The Editors)