소송상 상계 재항변 불허 판결로 살펴본 상계충당, 소송외 상계의 해석론

Abstract

Supreme Court Decision 2012Da107662 Decided March 20, 2015 (hereinafter “the subject decision”) held that reply to an answer for offset in court was impermissible on the substantive (as opposed to procedural) grounds of the “effectiveness of offset (i.e., extinction of the defendantʼs bond)” and the “plaintiffʼs possession of alternative means of relief (i.e., making additional amendments to the claim and filing a separate claim).” In case the defendant puts up a defense of offset in court by designating the bond most favorable to himself/herself as vanishing bond, the plaintiff claiming for multiple bonds has the following three options: (a) to reply to an answer for offset in court; (b) to plead for offset appropriation; or (c) to give notice of his/her intent to offset out of court by designating the bond most favorable to himself/herself, and then to plead for the same in court. The Korean Civil Act explicitly requires the application mutatis mutandis of the provision on payment appropriation to offset appropriation. However, the said provision seems inappropriate for its oversight of the difference between offset and payment. Nevertheless, explicit provisions deserve deference at least in statutory construction. In the context of offset appropriation, the offsetting party has the right to designate the bond to be extinguished, insofar as he/she keeps to the descending order of priority from cost, to interest, and to principal. Thus, an offset appropriation plea does not differ much in its outcome from that of a reply to an answer for offset in court. The option of giving notice of the plaintiff’s intent to offset out of court by designating the bond most favorable to himself/herself, and then to plead for the same in court, leads to an opposite outcome from that of a reply to an answer for offset in court. This is because, under the reasoning of the subject decision, the plaintiff’s notice of intent to offset out of court takes effect before the defendant’s answer for offset in court, which takes effect only when the court makes a substantive decision on offset. However, it does not seem fair for the conjunctive nature of the answer for offset in court to work to the defendantʼs disadvantage. Nor is it acceptable that the outcome of a pleading to the same effect should differ depending on whether it was made in or out of court. Therefore, an answer for offset in court ought to take substantive legal effect immediately when the notice of that intent reaches the plaintiff, and its effect should retroactively expire unless the court makes a substantive decision on the offset pleadings. As such, the conclusion of the subject decision (denying a reply to an answer for offset in court) is mostly consistent with the outcome of offset appropriation pleading, yet not with that of offsetting out of court and then pleading it in court. Therefore, it is necessary to construe the point at which the answer for offset in court take substantive legal effect to mean “when the notice of that intent reaches the plaintiff.”