訴訟上 相計抗辯의 법적 성질

A variety of views on the correlation between effects of the legal entity and an act of legal effect as a legal action are presented in the case of exercise countervailing rights as a defense method in civil procedure. These differences of opinion are caused by the different point of view on whether or not to apply the civil law regulation on exercise countervailing rights. The theory of conduct on substantive law explains that a plea in discharge by offset has both of representation of reality countervailing law and proceedings that claim the demise of appeal bonds by offset. The new theory of conduct on substantive law is taking a modified position that allow conditional&preliminary plea in discharge by offset in consideration of the legal attributes and dealing unlike other formative right in the case of the plea in discharge by offset. The theory of conduct on substantive law explains that exercising countervailing rights in civil procedure is belong to the submission of defense method and it would be seen as a pure proceeding when figure it as a one acts and the act does not contain the effects of substantive law. In each of the above views the new theory of conduct on substantive law can be called orthodoxy, and recently released judicial precedent of Korean Supreme Court has taken the position of the new theory of conduct on substantive law as well. Preliminary plea in discharge by offset allowed by judicial precedent whether achievement of condition is determined by any decision by the court regarding the presence of the plaintiff's appeal against the bonds. In Germany and Japan there are a lot of debate on so-called the countervailing re-submit pleas that the offset of the bond for the plaintiff against defendant's plea in discharge by offset. In my view our courts should accept those theory, so, in this paper, we examine about these issues as well.