제3자의 상계권 행사

Abstract

In Civil Act, a set- off is considerably strong system which can cause the discharge of bilateral liabilities by one party’s declaration. However, some cases allow the rights of set-off to 3rd party who does not have the Claim in same species with conflict of interest. The three types of 3rd parties that the law recognize the ownership of set-off rights are ① A surety and a one of the obligors jointly and severally who can exercise the set-off rights for a qualified debtor when qualified debor do not exercise the right. ② the recognition of set-off right by transfer of the claim after the lapse of set-off ③ the 3rd party who holds the claim of the obligee set- off his claim to the obligee’s claim.: which is not expressly stipulated in our law. In first case, the validity is acknowledged in terms of the function of a set-off (easy settlement, consideration of fairness, guarantee). However, the second case may cause the complicated legal matters. The third case is the matter of allowance of 3rd party set-off rights which is not specified in the law. As a general rule, a set-off is the rule which helps the settlement of both parties with conflict of interests. So it is impermissible to allow the 3rd party set-off rights if it infringes the legal relations of related parties. The 3rd party set-off right is allowed only when it solves legal relations of all parties in a easy way and there is no infringement of other parties. Under this standards, with the exception of the right or wrong of ①, ② which are stipulated in the law, it is difficult to acknowledge the ③ type 3rd party set-off right.