상계계약의 대외적 효력에 관한 고찰- 2자간 상계계약을 중심으로 -

Abstract

According to Korean case law, there are two types of restrictions about set off against the third party who seized the counter-claim. By the seizure of a counter-claim, the set-off of claim to which the obligor is entitled in relation to the obligee is excluded, ① if obligor's claim only became due after the seizure and later than the seized counter-claim(first restriction), or ② if the obligor acquired his claim after the seizure(second restriction). Then can we avoid these restrictions by making set-off contract in advance? If we always say "Yes" on the ground of freedom of contract, it will result to making claim that is free from the third party's seizure, therefore has priority. But basically, making claim that has priority is the task that has to be done by the law or the security system with public notice, in other worlds, by the social institution. So we should not always accept the validity of such set-off contract against the third party who seized the counter-claim. Contract can not always replace social institution. Then, when & on what conditions can parties avoid these restrictions by making set-off contract?Contracting on the forfeiture of benefit of time(acceleration clause) is the one way for escaping from the first type restriction. In Korea, banks usually use such terms in the standard loan contract to set off against borrower's deposit money. Bank's expectation to have the priority about deposit money as a lender may be socially common and reasonable. In other countries(Japan, Germany, USA) bank's such expectation is protected, though in different ways. But I think that the validity of acceleration clause can be justified on the freedom of contract, so the clause used by other private parties except bank is also valid. And I think the acceleration clause is also valid in the insolvency proceedings, in principle. Unlike the first restriction, the second restriction is hard to escape from by contract. And we need to control the validity of set-off contract made to avoid the second restriction, more actively from the social & institutional perspectives. So, anticipatory set-off contract is not valid against the third party seizer, in principle. And individual claim in the "current account(Kontorkorrent)" can be the object of the seizure. When there is connectivity between claim and counter-claim, we can set-off regardless of the second restriction. But such connectivity means 'objective' connectivity that can not always be made by contract parties unrestrictedly.