부진정연대채무자 중 1인의 상계의 효력에 대한 고찰 - 대법원 2008다97218판결을 중심으로 -

Abstract

Based on the argument that there is no subjective relevance (agreement) between debtors of non-real joint obligation, the Supreme Court has taken the position that the absolute effect of a setoff by one debtor on a non-real joint obligation cannot be recognized, despite the Civil Law article 418 recognizing the absolute effect of a setoff on a joint obligation. The court’s intention is to guarantee the creditor, who is the tort victim, to receive realistic compensation for damage from the joint tortfeasors. But this overlooks the problem of double compensation that can occur when the victim (creditor) sets off an existing debt owed by one of the joint tortfeasors and discharges the obligation but still claims the entire compensation amount from the rest of the joint tortfeasors. As a result, at times unfairness has occurred between the joint tortfeasors with respect to exercising the right of indemnity. Through the subject decision, however, the Supreme Court, by recognizing as an absolute effect the effect of a setoff by one of the tortfeasors based on the one-off principle of compensation for damage,changed precedent by ruling that the victim can claim from the other joint tortfeasors the compensation amount minus the setoff amount. This position of the Supreme Court is reasonable because it eliminates double claiming of debt and preserves the one-off principle of repayment. It also promotes specific reasonableness by enabling the debtor (a joint tortfeasor), who exercised the right of setoff, to exercise the right of indemnity against the other joint tortfeasors. Ultimately even in the case of non-real joint obligation, in order to realize “one-off payment” and “fair sharing of compensation responsibility between debtors” that make up the basic properties of debt, the subject court decision agrees with the position of a majority of academic opinions that find it reasonable to accept the absolute effect, even if the tort victim (creditor) is unable to receive a realistic compensation and has to settle for passive compensation through a setoff, and thereby recognizes the absolute effect of a setoff by one debtor of a non-real joint obligation against the other joint debtors. This decision that breaks from precedent is reasonable.