채무의 견련관계가 상계에 미치는 영향

Influence on Set-off by Connectivity of the Obligations

The connectivity requirement of set-off is satisfied when the obligations of set-off arise from the same legal relationship or are economically related with each other strongly enough to be regarded as coming out of the same legal relationship. As the relationship between the obligations is not the requirement for set-off according to Korean Civil Code Article 492, the obligations not fulfilling connectivity requirement can be the object of set-off. There are some countries which do not require connectivity for the requirement of set-off such as Germany, Austria, Swiss, and Japan. But French Courts admit the role of connectivity in the process of set-off, granting special protection to the set-off of connected obligations. English Court has been approved the distinctive types of set-off, statutory set-off and equitable set-off. Equitable set-off requires connectivity between the obligations and has a priority over assignment or garnishee order when one of set-off claim was assigned or garnished. I think the relationship between the obligations of set-off is important in studying and understanding many issues concerning set-off, especially lifting set-off restrictions. Korean Civil Code Articles 496-498 prohibit set-off against any obligation arising out of intentional unlawful act, obligation of which attachment is prohibited, and obligation under garnishment order. But if the obligations of set-off are connected to each other, it is required to admit set-off regardless of these prohibitions, because the person declaring set-off has a great expectation towards setting off the principal obligation arising out of the same relationship with the cross-claim. And it is also unfair to enforce the debtor of the principal claim to perform the whole amount of the claim whereas he could not receive the performance for his own cross-claim with its full amount. For example if the vendee(purchaser) is damaged by the defective product of contract but should still pay the whole amount of the price, then it is unfair and violating his expectation towards the contract when he cannot receive the full amount of the claim for damages because the vendor does not have enough money to pay for it. Set-off between connected obligations is similar to deduction or appropriation which is free from these set-off prohibition and acquires priority over garnishment order or assignment. Therefore, set-off should be exempted from the set-off prohibitions and have priority over assignment or garnishee order when the set-off obligations fulfill the requirement of connectivity. The connectivity requirement also plays an critical role in deciding matters such as set-off against wages, set-off of state obligations, appropriation (imputation) of set-off obligations, and abuse of set-off.