소송상 상계에 대한 상계의 재항변의 가부- 원고의 소송상 상계의 재항변을 예외적으로 허용할 수 있는 경우와 관련하여 -- 대법원 2015. 3. 20. 선고 2012다107662 판결 -

Abstract

The Courthas ruled that in a defendant’s lawsuit, the plaintiff’s legal re-plea of set-off against the defendant’s legal plea of set-off is not permissible, and the same appliesto legal re-plea of set-off in cases involving only one out of two debt claims. The permissibility of legal re-plea of set-off against the legal plea of set-off tends to be determined depending on when the set-off would be in effect of substantive law and whether the re-plea would make the legal procedure more complicated. From the perspective of the time of actual legal effect, the offset pleading acquired for defendant’s set-off plea would have already become extinguished if the plaintiff’s legal re-plea of set-off were submitted or the court hearing were being held, and therefore the legal requisites of the plaintiff’s legal re-plea of set-off against the defendant’s legal plea of set-off are not fulfilled. Even from the perspective of litigation policy, in addition, if legal re-plea of set-off against a plea of set-off were permissible, the legal procedure would become more complicated, and therefore, it would be reasonable not to allow legal re-plea of set-off against the legal plea of set-off. Other than this, furthermore, the plaintiff would have other remedies such as a separate claim, and therefore it would not be considered imperative to permit the plaintiff’s legal re-plea. In some cases, however, legal re-plea of set-off against the legal plea of set-off would need to be permitted. The court’s ruling was a case of legal re-plea of set-off against legal plea of set-off by setting some of the debt claims that the plaintiff has already filed as a counterbalancing claim as the offset pleading. In this case, the reason why the claim filed as a debt claim is asserted to be a legal re-plea of set-off is the debt claim can not be exercised in the law suit although the existence of the debt claim is acknowledged. It would only be an exceptional case. Furthermore, the legal procedure will never become more complicated because it is limited to the debt that the plaintiff already claimed. In such cases, however, other remedies would not be available except for legal re-plea of set-off because the debt is most likely unable to be exercised although the plaintiff files a separate claim. Accordingly, it is expected that the plaintiff may have negative consequence unless the legal re-plea of set-off is permitted under such a condition. The court ruling only states that legal re-plea of set-off can not be permissible in general without further discussion in an exceptional situation in which plaintiff appeals a legal re-plea of set-off againsts one of the set-off claims. Thus, there should be in-depth discussions regarding this issue in the future.