합의상계의 유형화를 통한 담보적 기능의 제한

Abstract

The section 498 of Korean Civil Code provides only that a third debtor can not stand up to the garnisher as offset with right of claim acquired after garnisher’s seizure. Thus the relations of the offset with right of claim acquired before his seizure and the seizure for that right are left to the construction itself. Our majority opinions and many precedents of Supreme Court have contended for superiority with both sides(offset and seizure) by judging an existence of rational anticipation of a third debtor toward the offset. Moreover the judgement is based on the turns of two claims’ ― a third debtor’s claim and debtor’s claim ― periods of execution. But this construction may have offered a solution to determine the superiority with both offset and seizure in Statutory Offset, I think that it needs another construction to approach to this problem in Offset Agreement at the very least. The starting point of this paper is critical minds about the attitudes which domestic theories and precedents place statutory offset and offset agreement in the same category and about the hindrance to effectiveness of seizure system in Korean civil execution law. Then I made an attempt to classify the various categories of offset agreements and reviewed their external effects against a third party individually on the basis of the German civil law from conceiving the disposal character of offset agreement. Therethrough I could identify that the offset contracts, precedent conditional reservations and anticipatory reservations have disposal characters. Then if we contend for superiority with both offset and seizure, the effect of offsets before an order of attachment always takes precedence over the effect of seizure. Meanwhile the typical offset reservations and the conditional reservations on forfeiture of terms benefit which only authorize the other party to offset have no external effects because the disposal characters are not in them. As a result, the function of offset does not work in these contracts. Nevertheless, the effects of offsets caused by conditional reservations on forfeiture of terms benefit at Conditions for Credit Transactions of Banks prevails against those of an order of attachment in present-day life. But the exercises of rights to offset by financial institutions must be restricted to the extent that need to collect their debts and not harm interests of debtors or third debtors. Just a scrupulous consideration about the effect of offset at Conditions for Credit Transactions of Banks is left to me afterward.