상계의 항변과 중복제소의 금지

Abstract

Article 259 of the Civil Procedure Act provides “With respect to a case pending before a court, neither party shall file a lawsuit again” (Prohibition of double lawsuits), in order to prevent double proceedings and contradicting/conflicting decisions. However, the defense of set-off in litigation is not a filing of lawsuit but simply a defense therein and, notwithstanding circumstances wherein the debtor (defendant in many cases) admits the presence of the creditor’s (plaintiff in many cases) claim and outright exercises his/her defense of set-off, in general the debtor initially denies the existence of the creditor’s claim and, provided the existence thereof is recognized, raises the defense that the relevant claim no longer exists for reasons of repayment or statute of limitations and then as a last resort – in preparation for circumstances wherein such defense is not accepted (i.e., the court recognizes the existence of claim) - sets off its claim against the creditor’s claim in the same amount (supplementary, conditional defense of set-off). So, the court does not necessarily get to decide on the defense of set-off and thus there shall be deemed to be no case pending. When one emphasizes this and thus strictly interprets the aforesaid provision, even if the debtor’s claim already used for set-off in litigation is made by a separate lawsuit (“defense-as-prerequisite” type) or if a claim already made by a separate lawsuit is used for set-off in litigation (“separate lawsuit-as-prerequisite” type), there shall be deemed to be no double lawsuits (view against analogy). But if a debtor’s claim is both used for setoff in litigation and is made by a separate lawsuit, there is a risk of double proceedings and, if the court decides on the defense of set-off in litigation, there is even a risk of contradicting/conflicting decisions. So, when one emphasizes this and thus eases strict interpretation of the aforesaid provision (analogy), there shall be deemed to be double lawsuits (view for analogy). In its decisions, the Supreme Court, without specific reasoning concerning the “separate lawsuit-as-prerequisite” type, permitted the defense of set-off wherein the debtor’s claim is one already made by a separate lawsuit, and simply recommended transfer of case to another chamber or court or consolidation of case examination for the purpose of preventing contradicting/conflicting res judicata and also promoting litigation economy. However, to avoid double proceedings and prevent contradicting/conflicting res judicata, the fundamental solution would be to analogy the aforesaid Article 259.