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Movable property as set out in the Commercial Collateral Act B.E. 2558 (“Act”) as new collateral may lead to problems on application and interpretation on right of the relevant parties involving movable property as collateral, problems between Collateral Acquirer and the Collateral Provider as well as problems among Collateral Acquirer, Collateral Provider and third party due to unclear provisions and lack of specific provisions. This thesis evaluated an analyzed selected foreign laws and model laws governing immovable property as collateral without de facto delivery thereof to creditors, namely floating charge under English laws, secured transactions under Article 9 of the Uniform Commercial Code of U.S.A., EBRD’s Model Law on Secured Transaction, and UNCITRAL Legislative Guide on Secured Transaction. Based on the research findings, it was discovered that the right of Collateral Acquirer should be regarded as ‘real right for debt collateral’ for the reason that it adheres and follows such collateral known as ‘right to follow the collateral’. It was further found that there is legal problem on some property in which the right of Collateral Acquirer can cover which is close to ‘proceeds’ set out in selected foreign laws under this thesis. In this connection, there are legal problems as to the scope and source of such property as well as problems incurred arising out of cash proceeds and instrument. As to the issue whereby the Collateral Provider commingled its original collateral with other movable property thereby creating new product, legal problems may arise whether the right of the Collateral Acquirer shall cover such newly created collateral. Under the above Act, such new right shall not cover newly created product (collateral), which differs from the selected foreign laws that such right can cover it. It is further remarked that as for limitation of right for utilization and disposal of collateral, it should be regarded as ‘personal right’ binding the collateral contractual parties. As for movable property transferee, from whom such movable property is transferred, such movable property is free from collateral, whereby there are three similar tests set out in the selected foreign laws defined as movable property free from collateral, namely Collateral Acquirer’s consent test, ordinary course of business test, and protection of the good faith third party (transferee) with remuneration test. The researcher found that under Thai law as now stands, it lacks clear provisions related to the aforementioned tests and has a question on rules for evaluation of transferee’s good faith. As for the lessee’s right over the movable property as collateral, the researcher discovered that under some selected foreign laws, it extends to protect the lessee to enjoy the utilization of the leased movable property arising from collateral foreclosure, but Thai law lacks that provision. The final research findings involved commingling of the collateral with movable property of the other person, thus becoming the component part or inseparable part. If the third party is the owner of the principal property, the right of the Collateral Acquirer does not cover the property that are component part, but covers the money that the third party shall reimburse as property fee to the Collateral Provider. It is submitted that to solve the abovementioned problems, clear definition of some property in which the right of Collateral Acquirer can cover should be set out, alternative methods such as tracking cash proceeds method be proposed in place of cash proceeds and instrument registration, Article 32 of the Act should be redefined in terms of evaluation rules on good faith movable property transferee, protection of lessee over the movable property at the time of collateral foreclosure should be introduced to the Act, suggested guide application and interpretation on commingling of the collateral with movable property of the other person, thus becoming the component part or inseparable part should be proposed. If the above suggestions can be taken into account, it would entail to clear application of such law which would benefit commerce and trading at large as well as bringing about justice and fairness to all contractual parties and third party. |
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