소송상 상계항변과 그 실체법상 효과의 발생·확정·소멸 - 대법원 2025. 8. 28. 선고 2022다284520 판결을 소재로 = The set-off defense in civil procedure and its substantial effect

다국어 초록 (Multilingual Abstract)

If the set-off defense in litigation is not judged substantially by the court, the defendant shall not be given a legal disadvantage for the extinguishment of the countervailing claim. For this purpose, unlike the general right to form, in the case of the right to set-off, even if it is exercised in litigation, the effect of the substantive law cannot be considered to occur as it is unless there is a practical judgment from the court.
In order to promote specific validity, the effect of the sef-off defense under the Civil Act shall occur once the expression of intention reaches the other party, but it is reasonable to consider the specificity of the countervailing defense in various litigation and to meet the intention of the parties who submit the set-off defense as a preliminary, hemorrhagic, and final defense.
Even if there is a considerable time interval between the declaration of the intention to set off and the court's actual judgment on the set-off, this should not be disadvantageous to the set-off right holder. If the court's actual judgment is made in the separate house before the conclusion of the factual hearing of the final judgment, and the court's decision to accept the claim of set-off in the lawsuit is made after the conclusion of the factual hearing of the final judgment (refer to Article 44 (2) of the Civil Execution Act), the conclusion of the target judgment is valid, and the logical composition that seems to be based on the theory of the existence of new recruits and the theory of conditional conditions and conditional conditions presented to support this is considered the most comfortable and flexible law.