공제의 법률관계- ‘공제계약’의 유효성에 관하여 -

Abstract

Offsetting and recoupment(deduction) have been understood as similar concepts in practice and as systems that perform similar functions. However, unlike in the case of offset, the Civil Act does not make any provisions regarding the requirements and effects of recoupment. Therefore, the legal principles regarding ‘deduction’ have been formed by practical practices and precedents supporting it. Cases have mainly allowed deductions limited to relationships in which money in the form of a deposit or advance payment is paid in relation to ongoing transactions - such as between lease deposit return claims and claims arising from lease contracts, between advance payment return claims and construction payment claims under construction contract contracts, etc. However, the recent Supreme Court decision 2015Da69990, delivered on January 24, 2018, ruled to allow deduction based on the parties' agreement regarding deduction. In other words, it recognizes the possibility that deductions may be recognized based on pseudo-factors rather than the objective nature of the legal relationship. In a legal relationships recoupments allowed, a creditor can obtain satisfaction of his claims with priority over other creditors. However, unlike offsets, there are no regulations, so if recoupments are allowed without restrictions, the status of third parties may become unstable. In addition, there are concerns that the offset restrictions stipulated by the Debtor Rehabilitation and Bankruptcy Act may be violated in bankruptcy procedures that require equal treatment of creditors. Therefore, expansion of the legal relationship in which deductions are recognized must be done with caution and should not be easily allowed only through ‘agreement of the parties’.