상호계산의 효력에 관한 고찰

Abstract

Korean Commercial Code regulates offset arrangement, which is used for the convenience of the merchants with continuous dealings in its Articles 72to 77. However, the conflict of theory continues on the following issues:First, the applicability of the ‘principle of inseparability of offset arrangement’on the third party as a result of offset arrangement (validity of transfer,pledge and seizure of the claims within offset arrangement). Second, the legal nature of account balance approval is argued on separation of account balance establishment and confirmation and on whether the security right exists or not. Lastly as there is no written rule about the error or omission in statement of account approval, the theories remain conflicted. Through extensive research of domestic and international documents, data and court judgments, this study reaches the conclusion that the following theories are reasonable, and underline the necessity for legislative solutions on these matters: the ‘Relative Theory’, which argues that the effect of ‘inseparability of current account’ is valid on both bona fide and mala fide third party of seizure while it can not affect bona fide third party in case of transfer and pledge; the ‘Novation Theory’, which views the legal nature of balance account is determined at the time of approval, and the security extinguishes without the existence of special agreement; and the ‘Unjust Enrichment Theory’, which asserts that approval of statement of account is valid even with the error or omission - and the difference should be restored as unjust enrichment.