상계금지특약의 효력과 관리인의 제3자성

In this article, the author analyzed the legal relationship between the parties of no set-off contract, when one of the contract parties enters the insolvency proceedings. The conclusion is as follows: First, a no set-off contract that unilaterally prohibits one contracting party’s set-off right may be made in order for another party that has not waived their right to set-off to use their claim against the former like a cash (signifying the quasi-cash function of the no set-off contract). In this case, the no set-off clause remains effective even when either of the contract parties becomes insolvent. Second, when insolvency proceedings starts against one of the no set-off contract parties, the trustee is equally bound by the no set-off clause like the insolvent debtor. In other words, the trustee does not fall within the category of a third party as stipulated in Art. 492, Para. 2, of the Korean Civil Code. Third, Art. 492, Para. 2 of the Korean Civil Code need to be abolished. The guarantor or joint debtor of obligations subject to offset, as well as the new debtor who assumed obligations subject to offset, must be bound by a no set-off clause, irrespective of whether they were aware of such contracts. Additionally an assignee, whose assigned claim was subject to a no set-off contract, should have the ability to set off any counter-claim held by the debtor of the assigned claim against the assignee, using the assigned claim, even if the assignee was aware that the no set-off contract existed. Fourth, even if a trustee is bound by a no set-off contract, they can subrogate the insolvency creditor's right of set-off when the insolvency creditor is also insolvent. The rehabilitation creditor can not exercise their set-off right in rehabilitation procedures, once the stipulated period for such exercise has lapsed. In such instances, a trustee is generally not entitled to exercise the rehabilitation creditor’s set-off right by way of subrogation either. Nevertheless, under exceptional circumstances, the subrogation right may be permitted, when such an exercise is considered advantageous to the rehabilitation debtor and the overall assets of the rehabilitation estate. Fifth, if the trustee's exercise of subrogation right is detrimental to the preservation of the collective assets of insolvency creditors who are insolvent too, it may be appropriate to deny the effect of exercising subrogation right on the grounds of abuse of right, even if it meets formal requirements.