공제합의에 관한 검토 - 대법원 2024. 8. 1. 선고 2024다227699 판결에 대한 평석 -

In past rulings, the distinctions among set-off, offset, and appropriation were not clearly drawn, and there was no specific judgment regarding the definition, requirements, or legal effects of set-off. However, the Supreme Court's en banc decision dated September 28, 2007 (2005Da15598) clarified that "set-off is distinct from offset , and the provisions on offset do not apply to set-off." Moreover, the Supreme Court decision of August 1, 2024 (2024Da227699, hereinafter referred to as the “Subject Decision”) provides a more detailed explanation of the requirements and effects of set-off compared to previous rulings. In this respect, the Subject Decision is a meaningful precedent. The main issues in the Subject Decision were as follows: where a buyer of an apartment unit received a bridge loan from a financial institution to fund the purchase, and subsequently lost the benefit of term due to a triggering event, causing the developer to acquire claims for subrogated payment and penalties – (i) whether the parties could agree to set off the buyer’s claim for the refund of the purchase price against the developer’s subrogated claim and penalty claim, and (ii) whether the point in time for the set-off should be deemed the moment the benefit of term was lost or the time of contract termination. The Court held that, under the principle of freedom of contract, the parties may freely agree on the requirements and effective date for set-off. While set-off by agreement, as in the Subject Decision, is in principle permissible, recognizing it without limitation could undermine transactional security and third-party trust. Therefore, even if such an agreement is made between the parties, unless there is a specific legal basis or a nexus between the claims, the parties cannot assert the set-off agreement against third parties. Meanwhile, the Court interpreted the “Confirmation Letter for Bridge Loan Application” (hereinafter referred to as the “Confirmation Letters”) and concluded that the reference point for the set-off between the developer’s subrogated claim and the buyer’s refund claim is the moment the benefit of term was lost. This conclusion appears valid based on a literal reading of Articles 1(4) and 2 of the Confirmation Letters. Although the Court did not explicitly address the timing for setting off the penalty claim, Article 2 of the Confirmation Letters does not specify the penalty claim as a subject of set-off. Therefore, the set-off of the penalty claim cannot be deemed to occur at the time of loss of benefit of term. In contrast, Article 2(4) of the Sales Contract stipulates that “upon cancellation or termination of the contract, the purchase price shall be applied in the order of penalty, late charges, etc.” Accordingly, the timing for the set-off of the penalty claim from the refund claim should be considered as the time of contract termination.