[1] The method of offsetting appropriation in a case where delay occurs due to the maturity of the passive claim which has already arrived before the time of offset

[2] In a case where multiple automatic claims exist and the principal and interest of multiple claims fall short of the total sum of the principal and interest of automatic claims, the method of offsetting or appropriation

[3] In a case where a set-off claim with multiple automatic claims has grounds, the court shall describe the scope of res judicata effect of the set-off on the grounds of the judgment

[1] Articles 477, 479, 492, 493, and 499 of the Civil Act / [2] Articles 476, 477, 492, 493, and 499 of the Civil Act / [3] Article 216(2) of the Civil Procedure Act, Articles 476, 477, 479, 492, 493, and 499 of the Civil Act

[1] [2] [3] Supreme Court Decision 2011Da24814 Decided August 25, 2011 / [1] Supreme Court Decision 2005Da8125 Decided July 8, 2005 (Gong2005Ha, 1303)

[Defendant-Appellee] Defendant 1 and 2 others

Defendant (Attorney Han-soo, Counsel for defendant-appellant)

Seoul Central District Court Decision 2011Na49133 decided September 14, 2012

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Summary of the judgment below

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning. (2) The defendant is obligated to refund the total contract amount of 89,860,000 of each of the contracts of this case and damages for delay thereof to the plaintiff pursuant to Article 3 of each of the contract of this case. As to the defendant's defense that his joint and several liability claim against the plaintiff is offset against the equivalent amount of the plaintiff's above contract deposit, the defendant shall set off against the defendant and Fungsan Co., Ltd. (hereinafter referred to as "Pungsan Co., Ltd.") and Fungsan Co., Ltd. (hereinafter referred to as "Pungsan Co., Ltd.")'s 20. 1 and 20. 9. 1 and 20. 9. 1 and 20. 7. 1 and 9. 1 and 20. 2. 1 and 3. 2. , the defendant shall be jointly and severally and severally guaranteed from the above contract of this case.

2. Whether offset claims are recognized as automatic claims;

(1) According to the reasoning of the judgment below and the records, Article 13(1) of each of the contracts of this case provides that "joint and several suretys are jointly and severally liable to the plaintiff for all the obligations that the plaintiff owes to the defendant as of the present and future." At the same time as each of the contracts of this case, the plaintiff stated that "the defendant and the issuer are jointly and severally liable to the defendant for all the obligations of the defendant," and the payment date is fixed at sight, and that "the above blank bill is issued to the defendant or to secure all the obligations that the defendant currently bears or will bear in the future." After that, the plaintiff and joint and several surety (the defendant 1 and 2) signed and sealed each of the contracts of this case, and Article 13(1) of the above contracts of this case and Article 13(1) of the above contracts of this case provide that "the plaintiff is jointly and severally liable to the defendant," and the plaintiff signed and sealed each of the contracts of this case as of March 21, 2008, and each of the defendant 20000 shares or 200 shares.

(2) The following circumstances revealed in the above facts, namely, each of the instant contracts is the contracts expected to be increased or decreased within the total amount of fish prices under each of the instant contracts, as shown in each of the instant contracts, and promissory notes are issued for each of the instant contracts, each of the instant contracts is jointly and severally guaranteed, each of the instant contracts is jointly and severally guaranteed, and each of the instant promissory notes and the number of units is issued for each of the instant joint and several sureties; the Plaintiff’s joint and several sureties of each of the instant contracts cannot find any special reasons for joint and several sureties to be jointly and severally guaranteed against the Defendant of Fasan and Masan at the time of the signing of the contract, and the joint and several sureties obligations owed by the Plaintiff, a joint and several sureties of each of the instant reputation and Masan contracts, are deemed to be “any obligations that are currently (at the time of the contract), or will be borne in the future, or are not related to each of the instant contracts.” Thus, they should be deemed to be included in the instant joint and several sureties obligations not related to each of the instant contracts.

(3) Nevertheless, the court below determined otherwise that the above mentioned claims are included in the joint and several guarantee obligations borne by the plaintiff and deemed them as an automatic claim for offset. In so doing, the court below erred by misapprehending the legal principles on the scope of comprehensive and several guarantee obligations or the automatic claim for offset, and the ground of appeal pointing this out is with merit.

3. Whether the offset is res judicata and whether it is specified for offset or appropriation.

(1) In the event of declaration of intention of offset, the obligation is deemed to be extinguished on an equal amount retroactively from the time of offset. As such, calculation of the difference between claims or appropriation of offset would be based on the time of offset. Therefore, where delay occurs after the time of maturity of the passive claim has already arrived before that time, the agreement is calculated as to the passive claim up to the time of offset, and the agreed interest and delay damages shall be retired first and the original with the balance shall be retired (see Supreme Court Decision 2005Da8125, Jul. 8, 2005, etc.). Meanwhile, in the case of an offset, the legal principle of appropriation of performance stipulated in Articles 476 and 477 of the Civil Act shall apply mutatis mutandis. Therefore, where several automatic claims exist and where it falls short of the aggregate of the principal and interest of several claims, the automatically appropriated claim may be set-off within the scope of set-off, and where the obligor fails to specifically set-off the amount of the claims in question by the court, which would be within the scope of set-off one of set-off.

(2) However, upon examining the reasoning of the judgment below, there is no mentioning whether the original and the damages for delay are extinguished by an offset, and the initial date and interest rate of the damages for delay to be extinguished, among the joint and several surety claims of the defendant against the plaintiff, which are the automatic claims of the above offset (each of the instant insurance policies and Dong-dong contracts was entered into seven trade contracts, and the claims for joint and several several suretys related thereto were entered into seven). In light of the legal principles as seen earlier, this constitutes an error of law by misapprehending the legal principles as to the res judicata effect or appropriation for an offset, which led to failure to exhaust all necessary deliberations or omitting judgment, thereby affecting the conclusion of the judgment. Accordingly, the allegation in the grounds of appeal

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)