전세권저당권의 목적인 채권의 상계 - 대상판결 : 대법원 2014. 10. 27. 선고 2013다91672 -

Abstract

A Case Review : Set-off between a Pledge on a Chonsegwon (a right to lease) and the Settlor of the Chonsegwon under Korean Property Law This paper examines a case whether the third debtor[settlor of Chonsegwon(a right to lease), a holder of claim against the holder of Chonsegwon(pledger) which was acquired before pledge] can argue setoff-defense, where pledge was exercised based on subrogation after the expiration of a lease on Chonsegwon. The Supreme Court decision ruled that after the expiration of a lease on Chonsegwon, the pledgee can exercise the subrogation on the security deposit on Chonsegwon which is existing instead of Chonsegwon, so that he(pledgee) can claim the deposit from the third debtor. Furthermore, the court ruled that the pledgee has preferential right to payment, and thus the third debtor cannot argue setoff-defense. However, if there is a need to protect the interest of reasonable expectation of the third debtor, it could grant the setoff rights. In spite of article 371, setoff rights should be granted if there is reasonable expectation to setoff. When does one have reasonable expectation? Since it is hard to imagine the situation where the third debtor expressively gives up his rights, it is meaningless to consider the matters caused by the third debtor. Therefore, the court should consider the matters related to the interested parties other than the third debtor. Especially it matters when the third debtor knew or should have known the existence of the interested parties if setoff is established. For example, in the case of assignment of claims, the court considers whether debtor had reasonable expectation to setoff at the time of notice or acceptance of assignment. When garnishment order on claims was made, the court considered whether the third debtor had reasonable expectation at the time of service of such order.