[1] In a case where one of the claims under a set-off contract is not established or invalidated and thus the set-off becomes null and void, whether unjust enrichment is established against the obligee (negative)

[2] The meaning of "it is impossible to exercise rights" which are not yet in progress

[1] A set-off contract is a contract with the purport of exempting a mutual debt, and where one of the claims is not established or invalidated, so if the exemption becomes null and void as a matter of course, the exemption of the other party's obligation becomes null and void, and the other party's claim still exists, and thus, it cannot be said that a benefit has been obtained without any legal ground solely on the fact that the debtor simply fails to perform his/her obligation, and it does not change even if his/her claim

[2] The extinctive prescription refers to a case where there is an obstacle in the exercise of a right, for example, a case where the existence of a right or the possibility of the exercise of a right is not known and there is no negligence, even if the existence of such right or the possibility of the exercise is not known and such cause does not constitute a legal obstacle.

[1] Articles 492, 493, and 741 of the Civil Act / [2] Article 166 of the Civil Act

[1] Supreme Court Decision 91Da28979 delivered on May 12, 1992 (Gong1992, 1835) / [2] Supreme Court en banc Decision 84Nu572 delivered on December 26, 1984 (Gong1985, 272), Supreme Court en banc Decision 91Da32053 delivered on March 31, 1992 (Gong1992, 1406), Supreme Court Decision 93Da3622 delivered on April 13, 1993 (Gong193, 1397), Supreme Court Decision 98Da42929 delivered on December 7, 199 (Gong200, 140) (Gong1403, 2063, Apr. 27, 2004)

Sejong Special Co., Ltd. and one other (Attorneys Park Jae-in et al., Counsel for the plaintiff-appellant)

Suwon Automobile Sales Co., Ltd. (Law Firm Shin & Kim, Attorney Hun-tae, Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na37395 delivered on December 2, 2004

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

A set-off contract is a contract with the content of exempting a mutual obligation, and where one of the claims has not been established or invalidated, so if the exemption becomes null and void as a matter of course, the exemption of the other party's obligation is null and void, and the other party's claim still exists. Thus, it cannot be said that a benefit without any legal ground has been obtained solely on the fact that the debtor simply failed to perform his/her obligation, and even if the claim has expired by prescription, it does not change even if the claim was extinguished by prescription (see Supreme Court Decision 91Da28979, May 12, 19

The court below held that the defendant's unjust enrichment is not likely to be established because the offset is null and void due to the lack of the defendant's claim for the fee, because the claim for the fee equivalent to the plaintiffs' fee is not extinguished, and the plaintiffs still hold the claim for the fee equivalent to the fee, and eventually, the plaintiffs do not suffer any damage due to the above offset. The judgment of the court below is justified, and there are no errors in the misapprehension of legal principles as to the offset

On the other hand, the extinctive prescription refers to a case where there is a disability in the exercise of rights, for example, a case where the existence of rights or the non-performance of conditions is not known, and even if there is no negligence due to the lack of knowledge of the existence of rights or the possibility of the exercise of rights, such a cause does not constitute a legal disability (see Supreme Court Decision 2003Du10763, Apr. 27, 2004, etc.).

The court below rejected the plaintiffs' assertion that the extinctive prescription period of the consignment claim against the defendant is from July 31, 2002, which is the end of the contract of this case where the plaintiffs are practically able to exercise the above rights, and judged that the plaintiffs' consignment fee claim has expired after the short-term extinctive prescription of one year under Articles 147 and 122 of the Commercial Act has expired. In light of the records, the judgment of the court below is proper and there is no error of law by misunderstanding the legal principles as to the extinctive prescription.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)