자동채권의 유형에 따른 상계권의 확장

The Expansion of a Setoff Right according to the Type of Claims

Uniquely, it is said that a setoff is a device under Civil Code, designed to use the judicial system efficiently, to remove the inconvenience and to spare the expenses of the parties. In other words, a setoff right is, provided in Civil Code, is the typical authority that contribute to such a following purposes. A setoff enjoys the benefits of a secured claim under the Civil Code, but it is more than that. First, a right of setoff is a remedy that has long been recognized and enforced in the commercial world at large, as well as under every one of the nation's bankruptcy acts, in part as a matter of essential fairness, but more importantly in recognition of the right as part of the bundle of substantive rights that may comprise a creditor's claim. Second, recognizing and preserving rights of setoff is thought to lesson the likelihood of a debtor's filing for bankruptcy relief in the first place, thus promoting the policy of bankruptcy avoidance. Broad interpretation of a setoff determines how much of creditor's claim involving a setoff right should be afforded status as a secured claim : an allowed claim subject to setoff is a secured claim to the extent of the amount subject to setoff, and is an unsecured claim to the extent that the value of the amount so subject to setoff is less than the amount of such allowed claim(11 U.S.C. 506). Like that Code, a creditor in Korea also should assert that a setoff should be treated like any other secured claim in Civil Code.