금전채권의 압류와 상계 - 대법원2012. 2. 16. 선고 2011다45521 전원합의체 판결 -

Abstract

Civil Act article 498 rules that a third obligor under garnishment order may not set up against his obligeewho requested such order any defense of set-off subsequently acquired by him. And the Japanese Civil Act article511 regulates that a garnishee with the restraining order for payment cannot countervail execution creditors byset-off of a creditor nation taken after the order. Regarding the application scope of these articles, Korean and Japanese precedents and theories have takenvarious positions. In "the Supreme Court Decision 2011DA45521 Delivered on February 16, 2012", the majorityopinion took so-called ‘The Period of payment standard’ position while the dissenting opinion took so-called‘The Unrestraint’ position. I started this research from disagreeing both positions. The primary purposes of this study were to; 1) Examine grounds for arguments which ‘The Period ofpayment standard’ and ‘The Unrestraint’ positions present; 2) Declare both positions are not valid; 3) Examineand validate ‘The Modified set-off proper condition’ position which have been discussed once. This study suggest that ‘The Modified set-off proper condition’ position is a valid method to define theapplication scope. Accordingly, I presented a new respect of analysis regarding the correlation among Civil Actarticle 492, article 498 and Civil Execution Act article 227(1). I also suggested the opinion why ‘TheStandardized loan agreement terms of banking’ is insufficient or invalid, in particular, concerning the articles of‘Forfeiture of Benefit of Time’ and ‘Reservation for Set-off’.