Extra-judicial and judicial set-off of claims against a bill, and requisite for delivery of the bill

In the case of offsetting a bill with automatic bonds, the issuance of the bill is unnecessary unless the debtor of the bill gives his/her consent, and the offset shall not take effect unless the bill is delivered. However, in the case of a judicial offset, it is sufficient to submit the bill to the court for presentation by presenting it to the other party.

Articles 492 and 493 of the Civil Act

Supreme Court Decision 71Da1047 Delivered on June 29, 1971, 76Da2999 Delivered on March 8, 1977

Hephoho Lake

Attorney Choi Sung-ro et al., Counsel for the defendant-appellant

Daegu District Court Decision 90Na6284 delivered on December 7, 1990

The judgment below is reversed, and the case is remanded to Daegu District Court Panel Division.

We examine the grounds of appeal.

(1) The court below rejected the defendant's assertion that the defendant's claim against the defendant under the above No. 4,600,000 was transferred from the above No. 199 on May 1989 to the defendant under the above No. 4,600,00 as a result of the sale of No. 20 units of the post, and that the above No. 1999 was notified of the above transfer to the defendant on the 30th of the above No. 1989. On January 6, 1989, the non-party No. 1999 on the non-party No. 2,210,00 won for the face value of the non-party No. 1 and the place where the payment was made are each Daegu-si, Seo-gu, Daegu-gu, which had no effect of offsetting No. 42-dong's claim against the plaintiff under the above No. 1999, Mar. 31, 198.

(2) However, in a case where a declaration of intent of offsetting a bill with an automatic claim is made by dividing it into an extra-judicial set-off and a judicial set-off without the consent of the debtor in the case of the former, the delivery of the bill is unnecessary and, without the consent of the debtor in the case of the parties, the set-off shall not take effect. However, in the case of the latter party (see Supreme Court Decision 76Da2999 delivered on March 8, 197; Supreme Court Decision 75Da739 delivered on April 27, 1976; Supreme Court Decision 71Da1047 delivered on June 29, 197).

Nevertheless, the court below's rejection of the defendant's defense of a set-off on the ground that the issuance of a bill is required even in the case of judicial set-off, such as this case, committed an unlawful act by misapprehending the legal principles on judicial set-off, and it was impossible to maintain the judgment contrary to the precedents of party members.

(3) Therefore, the lower judgment is reversed and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-sung (Presiding Justice)