부동산개발 프로젝트 파이낸싱의 법적구조에 관한 연구

부동산 프로젝트파이낸싱 사업의 이해관계자 간 법률관계를 검토했다.

The aim of this study is to examine how the legal relations between stakeholders regarding the success of failure of project with the PF method in which insufficient fund is procured in the promotion of real estate project with feasible idea. The project financing (PF) of real estate means to procure necessary finance for the project that estimates future cash income based on the feasibility and profitability of the project and credit rating of the project developer in the development of real estate with a specific purpose.

Basic legal structure of PF for real estate development is formed in 3-parties legal relation among ‘developer’ who is the subject of the real estate development by planning a project, ‘the PF dealer’ who provides PF loan and ‘contractor’ who is responsible for the project construction. In the first place, while legal relation between the developer and the PF dealer is defined by PF loan agreement.

Its main contents indicates contract parties and joint surety including definition of contractual terms, purpose of loan, loan amount, and loan participation ratio, termination, withdrawal of loan and preliminary conditions, loan charges, loan interest and other expenses, repayment of loan and remuneration, lost sale profit and financial management, collateral on project site and building under construction, subordinated loan and fund supplementing agreement, joint guaranty, collateral performance, reason and action for default, transfer of rights and other issues.

Despite such provisions, there might be cases that the developer depends on excessive loan due to lack of financing or shows moral hazard, and that the management of the PF dealer is lack of responsibility that provides excessive loan making it hard to collect fund. So, a legal improvement is required to give obligation of securing professional personnel for the PF dealer to assess credit of the developer and project feasibility together with reinforcement of responsibility of the management.

In the next place, while the legal relation between the developer and the contractor is defined by construction contract or sub-contract, unjust special provision or improper sub-contract is prohibited as per the ‘act for the fair subcontract transaction.’ Generally, as for civil construction work, standard contract document is used which includes provisions on construction milestone statement, bill of quantity, prepayment, material inspection, safety management and disaster compensation, emergency action, extension of construction period, improper construction, project price adjustment by design change or price fluctuation, payment of completion portion, completion and payment, deferment of implementation and guaranty, defect warranty, contract termination and damage compensation, construction supervisor and site manager.

Nonetheless, the developer may be lack of specialty to assess whether the contractor is fully competent or not, and the contractor depends on implementation collateral of construction price payment on the completion portion from deferment compensation and general guaranty. So, if any lawsuit arises, it is hard to secure prompt construction finance.

Furthermore, if there is any delay of construction payment due to unsold state, or liquidation procedure is progressed on the project, it is necessary to establish a special provision of the development right acquisition by the contractor and the transfer of title of the building owner, and it is also necessary for the developer to receive real estate special consulting as mandatory to reinforce specialty. And, it is also required to develop a systematic device for the developer as the project company such as imposition of periodic project progress report obligation to the supervisory institution (Ministry of land, transportation and maritime affairs).

Finally, the legal relation between the contractor and the PF dealer focuses on the responsible completion of the contractor on the project and joint surety relation on the loan of the developer. The joint surety agreement of the contractor is not agreed separately from the PF dealer, but the contractor participates in the guaranty for the joint surety provision in the PF loan Agreement, where the contractor signs and seals with proper documents as joint surety.

To ensure the implementation of loan, it is agreed that the PF dealer distributes 1 copy of current check with payment to the bearer in the blank check, and power of attorney of supplementary rights of the blank check on the contract date of the warranty agreement. As such, as the PF dealer warrants the implementation of loan by the blank check instead of depending of project feasibility or future cash income, the contractor takes excessive burden to provide joint surety or to acquire loan of the developer as well as the responsibility for the construction.

To the contrary, the priority of receiving construction price to the contractor is delayed to the posterior order after appropriating expenses such as loan principal and interest. As it is limited to the balance in the management account, if the sales profit is insufficient, the contractor has to take the burden fully. Accordingly, in the PF loan with non-recourse financing, it is necessary to revise the legal system by developing an obligatory standard terms and conditions that shares the risks of project loss equally among the developer, the PF dealer and the contractor.

이 논문은 사업성이 있는 아이디어로 부동산개발 프로젝트를 추진하는 경우에 부족한 자금을 PF라고 하는 금융방식으로 조달하는 것을 전제로 프로젝트의 성패에 따라 이해 관계자간의 법률관계가 어떻게 형성되어 합리적으로 해결되어야 할 것인가를 고찰하는 것이다. 부동산개발 프로젝트 파이낸싱( Project Financing : PF )은 특정한 목적으로 부동산을 개발함에 있어서 그 프로젝트의 타당성과 수익성을 기초로 한 사업계획서와 시행자의 신용을 바탕으로 장래에 발생될 현금수입을 예상하여 프로젝트 수행에 필요한 자금을 융통하는 것을 의미한다. 부동산개발 PF의 기본적인 법적구조는 일반적으로 프로젝트를 기획하여 목적사업을 수행하는 부동산개발업의 주체가 되는 ‘시행자’와 PF대출 자금을 제공하는 ‘PF업자’, 그리고 당해 프로젝트의 공사를 담당하는 ‘시공자’라고 하는 3 당사간의 법률관계로 형성된다. 먼저, 시행자와 PF업자 간의 법률관계는 PF대출계약에 의하여 정해지는 것이지만, 그 주요 내용은 대체로 계약당사자와 연대보증인을 표시하고, 계약상의 용어 정의, 대