2016년 프랑스 채권법 개정에서 상계 규정의 변화

Abstract

In the course of revision of the french civil code, the provisions regarding set-off were also changed, in line with the decisions of french supreme court, court de cassation. First of all, set-off of new french civil code needs to be invoked by one party to be effective, which clearly changes the ipso iure set-off system adopted by old law where the mutual debts of set-off were removed automatically at their concurrent amount. According to the coherent decisions of french supreme court, even under the old civil code, the invocation was necessary to make set-off effective, and if it were not invoked, it would be regarded as if set-off were abandoned and ineffective. Then one question can be raised. What is the difference between the french system and the german system? Because, under both systems, the set-off needs to be invoked by a party to be effective. Under the french civil code, set-off is effective once its requirements are fulfilled, and if it is not invoked until the payment of one of the obligations or the final day of a trial until when the new point of argument can be raised, then the effect of set-off will be removed retroactively. On the other hand, under the german system, the set-off becomes effective only when it is invoked, which retroactively eliminates the concurrent amount of the mutual obligations. Second, the revised code civil enacted two kinds of set-off, set-off judgmental and set-off conventional. Even before this reform, these kinds of set-off were recognized by the decisions of french supreme court and now they were enacted in the new code civil. Set-off judgmental is a set-off made by the court, so the requirements are lightened and the debts do not have to be due nor liquid. Being liquid is not a requirement for set-off in Korea, Japan nor Germany. It means that the amount of debts is determined or has all the elements to be determined. For example the damages claim from traffic accident is not liquid, because its amount is not clear at the first sight and should be decided by the court or consents of the interested parties. The effect of set-off judgmental begins when the judgment is confirmed, which is different from the legal set-off. Set-off conventional is a kind of set-off made by the consent of the parties, the debtors of mutual debts. As the creditors and debtors have an authority to change or remove their credit and debts, the requirements of legal set-off are not required for set-off conventional. But the new code civil restricted the time of its effectiveness.(art. 1348-2) So it is effective when the set-off is consented if the debts are already existing, and if they are future debts then it is valid when they begin to exist. Third, the new civil code made a new provisions regarding set-off between the connected debts, which was recognized by a group of decisions of french supreme court since at least several decades ago. Being connected means that the debts are made from the same contract or the same legal relationship. For example rents and deposit are connected. If the debts are connected, then the requirements of legal set-off should be eased, so the judge cannot reject set-off judgmental, if the debts are neither due nor liquid, when they are connected. And the set-off regarding connected debts has a priority to the third party such as garnishor or credit assignee. So even though one of the debts of set-off is garnisheed before the requirements of set-off are fulfilled, set-off is effective and opposable against the garnishment or attachment order.