Whether Article 495 of the Civil Act may apply mutatis mutandis to a claim whose exclusion period has expired (affirmative)

When both of the parties' claims were set-off, it is general to think that the relationship of claims and obligations has already been settled, and as long as Article 495 of the Civil Act provides for the protection of trust of such parties, in light of the principle of fairness, it is reasonable to equally protect trust of the parties to the claims subject to the exclusion period, as well as the ordinary transaction concept. On the contrary, there is no reason that the exclusion period of the claims is only the exclusion period, and there is no need to protect the party's trust or otherwise determine on the ground that the exclusion period of the claims is the exclusion period (if the other party exercises the other party's claims contrary to the other party's trust by using the other party's trust even if the exclusion period has already expired or the lapse of the exclusion period, it is likely to be contrary to the principle of good faith). In the case of claims the exclusion period of which

Article 495 of the Civil Act, Article 848 of the Commercial Act

Cali Mar Ltd. (Law Firm Young Sea, Attorneys Go Young-young et al., Counsel for the plaintiff-appellant)

Hanjin Shipping Co., Ltd. and one other (Attorney Lee Dong-soo, Counsel for the plaintiff-appellant)

July 23, 2003

1. All of the plaintiff's claims are dismissed.

2. All the costs of lawsuit shall be borne by the plaintiff.

The Defendants jointly and severally pay to the Plaintiff 86,38.97 US dollars and interest thereon at the rate of 5% per annum from July 1, 2000 to May 31, 2003 and 20% per annum from the next day to the date of full payment.

1. Occurrence of liability for damages;

A. Facts of recognition

The following facts may be acknowledged in combination with the statements in Gap's 4 through 8, Gap's 1, 2, Eul's 1-1, 2, Eul's 2, Eul's 1-7, and Eul's 3 through 5, and the testimony of Lee Jong-hee's 1-1, 2, Eul's 2, and the purport of the whole pleadings:

(1) MB is a general cargo ship with a gross tonnage of 10,984t, total length of 146.07mt, maximum speed of 14.2 p.m. which was built on 1977, and MBB's Han Jin-si (hereinafter referred to as "Korean Jin-si") is owned by the Plaintiff, and MBB's LNG transport ship with a gross tonnage of 90,004t, total length of 268.5m, maximum speed of 19 p.m. which was built on 195, and the owner or operator of Alban-si LNG, Inc. owns it as an operator and operates it on the sea transportation.

(2) At around 07:40 on July 1, 200, when mooring at the south of the port of Busan (in the direction of 289do, 1.3 miles away from the growth map), the port of Busan was permitted to navigate from the port of port of port on July 1, 200 and operated automaticless signal apparatus and two radars around 07:55. At around 07:59, the port of port of port was exceeded the boundaries, and the speed was 160 degrees at that time, and 6.2 knots at that time.

Around 08:05, Malaysia discovered the course of a vessel that intrudes on the course of a self-ray from the port line to 170 degrees. At around 08:08, the course was changed to 170 degrees. At around 08:08, she eventually, it conflicts with the port line at around 08:10 degrees 1.13 miles from the port line (the nearest 37:00 degrees 7 degrees N, 129:0 seconds 05 degrees 00 degrees 05 degrees 00 degrees east) at sea near the port line (the nearest 37°0 degrees 00 degrees N, 129.0 degrees 05 degrees 00 degrees east), the part part of the port line at the port line of Jinyeong-gu and the wing 2ndheading dek.

(3) Meanwhile, at around 03:00 on July 1, 200, Hanyeong-si started a mountain port to repair a house and arrived at the vicinity of the port of Busan at around 07:00, and around that time, due to the aggravation of visibility, it started moving to the south side of the port of Busan, after taking measures such as additional placement of field watchers and strengthening of radar surveillance.

At around 07:45, in order to lay the tomb in the Busan Port N-5 Burial Site, which is a scheduled burial site, the 07:45, he additionally posted poppy personnel to the players, and around 07:46, he changed the speed to about 4 poppy (SOLWPED) at about 240,000, and approach the Busan Port N-5 Burial site at around 07:55, while a ship (coppyhoho) left at a relatively rapid speed near the n-4 funeral site in the direction of 2:00 SPED on the alphar 07:55, was discovered, but no further measure was taken, and entered the burial site, which is a destination.

However, while the two are continuing to proceed without any measure, Han Jin Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Lib Lib Lib Lib Lib Lib Lib Lib Lib Lib Lib Lib Lib Lib Lib Lib Lib Libh Lib Lib

(4) At the time of the accident, the weather conditions at the time of the accident have been extremely limited to the visibility of less than 100 meters due to the inside of the dog, and the North East East and North East are being flowed at the speed of 1 to 2 knots.

On the other hand, the sea near the collision point is the area where there are many vessels at anchor and the passage of vessels to the port of Busan is frequent.

(5) The distance from the place where Catho Lake was departing to the point of collision is about 2.35 ma, and the average speed calculated on the basis thereof was at least 4.7 n.e., about 6.2 n.e., at least 6.2 n.e., at least after leaving the port.

On the other hand, the average speed calculated on the basis of the distance moved from 07:50 to 08:08 from 4.83 knots, and the actual speed at the time of collision 08:10 was 4 knots.

B. Relevant provisions of the Sea Traffic Safety Act

Article 13 (Supervision)

Every vessel shall at all times maintain an appropriate boundary by sight, hearing, and all other means suitable for the prevailing circumstances and conditions in order to fully determine the surrounding conditions and the risk of collision with another vessel.

Article 14 (Safety Speed)

(1) Every vessel shall at all times navigate at a safe speed so that she can take proper and effective action to avoid a collision with another vessel and stop at a distance appropriate to the prevailing circumstances and conditions.

Article 15 (Risk of Collision)

(1) In order to determine whether a ship is in danger of a collision with another ship, all means suitable for the prevailing circumstances and conditions shall be used.

(2) A vessel equipped with radars shall conduct long-distance injection by radars, and shall conduct long-distance and other systematic observations of detected objects, in order to confirm in advance whether there is a risk of collision with other vessels.

(3) No vessel shall judge whether there exists a risk of collision with other vessels by inadequate radar information or other insufficient information.

Article 16 (Action to Avoid Collision)

(1) When a vessel takes action to avoid a collision with another vessel, she shall take such action actively in accordance with the appropriate practices of the operation of the vessel with sufficient time to the extent possible.

(2) When a vessel changes her course or speed in order to avoid a collision with another vessel, she shall make such changes as much as possible so as to be readily recognizable by another vessel, and she shall not make small changes in her course or speed continuously.

(3) When a vessel intends to alter course from a wide water area to avoid a collision, she shall alter course by a large angle at an appropriate time, and shall ensure not to approach another vessel accordingly.

(4) When a vessel takes action to avoid a collision with another vessel, she shall ensure that she can navigate along a safe distance from the vessel. In such cases, she shall carefully check the effects of her action until another vessel passes completely.

(5) If necessary to avoid a collision with another vessel or to take time to make a judgment on the situation, a vessel may sway her speed or completely stop her course by stopping or moving her engine.

Article 27 (Conduct of Vessels in Restricted Vicinity)

(2) Every vessel shall proceed at a safe speed suitable for the prevailing circumstances and conditions of restricted visibility, and a power-driven vessel shall have her engines ready for immediate maneuver when in restricted visibility.

(3) Every vessel shall navigate with due regard to the prevailing circumstances and conditions of restricted visibility in taking measures pursuant to Section 1.

(4) A vessel that finds, however, that there is another vessel shall determine whether she is in a very close-quarters situation with the vessel or whether there is the risk of a collision with the vessel. In such cases, she shall take action to avoid collision in sufficient time, if she judges that a close-quarters situation is developing or there is a risk of a collision with the vessel.

(5) If the action to avoid a collision under paragraph (4) consists of a change in course alone, the action falling under any of the following subparagraphs shall be avoided as far as possible:

1. An alteration of course toward the port side when another vessel is forward of the beam, except in case of a vessel being overtaken;

2. An alteration of course toward a vessel which is back of the beam or the beam.

C. Determination

(1) In full view of the facts acknowledged above and the provisions of the above maritime traffic safety Act, at the time, Hangyeong-si was restricted to less than 100 meters in sight of a dog, and not more than 100 meters in sight of the ship at the time, but also the fact that the ship accident of this case occurred due to the vessel's fault on the port side of Jinyeong-gu through Rara around 07:55 when the ship, etc. at anchor, which had a difficulty in emulsion or emulation, left at a relatively rapid speed. In such a case, the ship's collision of this case can be said to have occurred due to the vessel's fault on the port side of Jinyeong-gu, which caused a relatively rapid speed to avoid collision or to take time to determine the situation, without making a decision on the risk of collision, even though there was a duty to completely stop the ship's course, and without making a decision on the risk of collision.

(2) On the other hand, in full view of the above facts and the above provisions of the Sea Traffic Safety Act, when considering the above facts, it should proceed at a safe speed suitable for the circumstances and conditions at the time when visibility is restricted, and in order to confirm the risk of collision with other vessels, even though there is a duty to use all means such as zero-distance injection by radar in order to confirm the danger of collision with other vessels, it can not be recognized that the vessel is under restricted visibility at the time of the collision with the vessel of this case, and that the area mixed with other vessels at the time of collision with the vessel of this case has been under restricted visibility at a considerable speed of not less than 6.2 knots, that is, it is difficult to see that the vessel is under restricted visibility at the time of collision with the vessel of this case at a speed of not less than 6.2 knots and that the vessel of this case has been under a speed of speed of making it difficult to see the situation and conditions at the time of collision with the vessel of this case, or that the vessel of this case has been under on the port of this case.

Although the plaintiff asserts that he had been engaged in extreme speed from 07:55 to 07.5, it is difficult to believe that the statement of Gap 11 and 12 was made, and rather, according to the statement of Gap 4 and 5, it is reasonable to view that he had been at least 6.2 knots in direct collision rate of cocons.

(3) Ultimately, the instant vessel collision accident is deemed to have been caused by the collision between the navigational negligence at Coinal port and the navigational negligence at Hanjin-si, and in full view of the situation at the time of the collision of a ship, circumstances leading to the collision of a ship, etc., it is reasonable to view that the ratio of the vessel’s fault at Hanjin-gu and Hanjin-si to 60:40.

2. Scope of liability for damages

A. The following facts are not disputed between the parties, or each entry in Gap evidence No. 7-2, 5, 7, 12-15, 23-26, and Eul evidence No. 6 may be acknowledged by considering the whole purport of the pleadings.

(1) Active damages

(A) The purchase cost of the old name Raft 2: US$7,000 ($$7,000) means US dollars.

(1) The plaintiff alleged that the plaintiff paid 12,900 dollars for the purchase cost of the old name cover 2,00 dollars, but it is not sufficient to acknowledge that the plaintiff paid 12,900 dollars for the above purchase cost by itself, and there is no other evidence to acknowledge that the plaintiff paid 12,90 dollars for the above purchase cost. Thus, the amount of 7,00 dollars for the defendants as the basis for the statement in Eul evidence No. 6 shall be deemed as losses).

(b) The purchase and inspection fees of old-name boats: USD 8,683.39.

(1) 650$30.30

(2) 3,200 US dollars for the purchase cost.

(3) Transportation charges of 2,520 dollars.

(4) 2,313.39 US dollars for transportation at Washington

(c) Repair engineer cost: 13,700.74$3

1. The cost of 8,700.74 U.S. dollars relating to the repair of the oat dek

(A) Each statement of 21,22 alone is insufficient to recognize that the Plaintiff paid the amount of 15,484.16 dollars in relation to the repair, and there is no other evidence, thereby recognizing the amount of damages in accordance with the statement of 6 evidence.

2. The cost of 5,000 US dollars relating to Freeboard Wring Brid Acceptance

(d) Materials cost: 2,630.9$

(A) Nos. 25 and 26 of the evidence Nos. 7 are not sufficient to acknowledge that the Plaintiff spent the amount of USD 7,148.79 at the material cost, and there is no other evidence, thereby recognizing the amount of damages by the statement No. 6 of the evidence No. 6).

(e) Accident investigation costs and testing costs: 4,475.03$10

(원고는 위 비용 이외에 갑7호증의 17∼19의 각 기재를 근거로 로이드사의 피라에우스, 바레인, 비사카팟남에서의 조사비용 합계 3,139.89$도 추가로 청구하고 있으나, 충돌직후 부산항에서의 조사비용 이외에 위 조사비용까지 이 사건 선박충돌사고와 상당인과관계에 있다고 인정하기는 어렵다.)

(f) In addition to the above amount of damages, the Plaintiff claimed the amount of USD 9,57.71 in total, including the temporary repair cost, excess service cost, communication cost, and excess service cost of the accident-related agency. However, the above amount cannot be deemed to have a substantial causal relationship with the ship collision accident of this case, or it constitutes a claim overlapping with the above recognized damage. Therefore, it is not reasonable.

(2) Loss: USD 8,689.70

(A) the amount of 6,398.35 U.S. loss due to any accident investigation and any delay in operation to repair the ship;

(b) 2,291.35 U.S. dollars during the repair period.

B. Plaintiff’s damage claim

When deducting the amount equivalent to the Plaintiff’s fault ratio ($ 27,107.86 x 0.6) from the total amount of the Plaintiff’s damage caused by the collision of vessels of this case, the Defendants are ultimately liable to pay the amount of USD 18,071.90 to the Plaintiff.

3. Determination as to a claim for offset

A. The parties' assertion

Since the collision accident of this case occurred due to the two faults in the Coinal and Hanjin-si, the defendants' damage liability against the plaintiff was generated, but the above claim was extinguished due to the failure to file a judicial claim within two years from the date of the collision of ships.

However, the Defendants asserted that if the Defendants are liable to compensate the Plaintiff, the provision of Article 495 of the Civil Act shall apply mutatis mutandis to the Defendants’ damage claim, set off against the Plaintiff’s damage claim equal to the amount of the Plaintiff’s damage claim. Accordingly, the Plaintiff asserts that the period of exercise of the vessel collision claim under Article 848 of the Commercial Act is a exclusion period, and that the said claim cannot be set off against the Plaintiff’

(b) Whether set-off against claims, the exclusion period of which expires, is permitted as automatic claims;

Article 495 of the Civil Code provides that if a claim, the extinctive prescription of which has expired, could have been set-off before the completion of the claim, the obligee may set-off. However, there is a dispute as to whether the above provision can be applied even to a claim whose exclusion period has expired

However, inasmuch as Article 495 of the Civil Act provides that both parties to a claim and a debt relationship have already been settled in a set-off, in general and in order to protect the trust of such parties, it is reasonable to equally protect the trust formed in the above-mentioned situation in light of the principle of fairness as well as the ordinary transaction concept. On the other hand, there is no reason for the exercise period of the claim to be determined without the need to protect the trust of the parties solely on the ground that the limitation period is the exclusion period, and there is no reason for the other party to exercise the claim contrary to the other party's trust (which might be contrary to the principle of good faith if the exercise of the claim contrary to the other party's trust is contrary to the principle of good faith, even if the limitation period of the other party's claim has already expired or is due to the lapse of the limitation period). In the case of a claim whose limitation

In particular, in light of the fact that two damage claims arising from one ship collision claims such as this case's collision claims have a function to maintain the substantial and economic equality relationship between the parties to the collision. However, where Article 495 of the Civil Act does not apply by analogy, it is reasonable to allow a set-off by applying Article 495 of the Civil Act to the claim for damages due to a ship collision for which the exclusion period has expired by applying mutatis mutandis the provision of Article 495 of the Civil Act to the claim for damages due to a ship collision.

Therefore, the defendants' declaration of set-off by the legal brief dated October 25, 2000 is legitimate.

(c) Set-off.

(1) The scope of the defendants' damage claim

In full view of the purport of the arguments in the statements Nos. 10, 12-1 through 3, 13, 14-1, 2, 15-1, 3, and 16-1, 3, and 16 of the evidence Nos. 14-1, 2, and 15 of the evidence Nos. 14-2, 32,963,700, and 4,266,000 and 1,800 dollars with the cost of accident investigation and verification, the defendants paid the cost of external sales replacement to the Hanjin Heavy Industries. The defendants' exchange rate of exchange as of September 15, 200, which the defendants paid the cost of external sales replacement to the Hanjin Heavy Industries, can be acknowledged as constituting a cause of causation of 1,119.90 for each of the above general costs (the defendants, other than the above cost, cannot be concluded to have asserted that there is a proximate causal causal relation between the ship collision and the actual cost of the ship.

Therefore, the amount of damages of the Defendants due to the instant vessel collision is 35,043.77$3,243.77$3,243.77 (37,229,700 ± 1,119.90) + 1,800 + (13,297.51$ out of the above amount, which is equivalent to the Defendants’ fault ratio of 40%, is ultimately the amount of damages claim against the Plaintiff by the Defendants against the Plaintiff is 21,026.26$.

(ii)Settlement;

As seen earlier, the Plaintiff’s damage claim against the Defendants against the Defendants was against USD 18,071.90, and the Defendant’s damage claim against the Plaintiff was in excess of USD 21,026.26. As such, the Plaintiff’s damage claim against the Plaintiff was extinguished due to set-off according to the Defendants’ lawful declaration of set-off, and thus, the Plaintiff’s damage claim, an equal amount, was extinguished due to the set-off. Therefore, the Defendants’ damage claim that

4. Conclusion

Therefore, the plaintiff's claim of this case is without merit and it is so decided as per Disposition.

Judges Kim Shin (Presiding Judge)