최저생계비 예금 상계의 사법적 효력과 법경제학적 고찰:민사집행법상 보호체계와 예금 상계 제도 운영상 쟁점을 중심으로

As the system of exempting deposits from attachment under the Civil Execution Act has expanded, the question of how to reconcile two competing values—the deposit set-off practices of financial institutions and the debtor’s right to a minimum level of subsistence—has emerged as an important issue in institutional design and operation. Deposit set-off has traditionally functioned as a key means of credit preservation for financial institutions by facilitating prompt debt recovery, reducing collection costs, and sustaining the supply of credit. However, in relation to the debtor’s minimum subsistence funds, both the permissible scope of set-off and the need for procedural safeguards have become increasingly contested. Against this backdrop, this study comprehensively examines the legal assessment of set-off against minimum-subsistence deposits and the implications of its regulation for financial practice, based on the structure of current law and recent case law. The Supreme Court has adopted an “individual balance” standard in determining the scope of exempt deposits and places the burden of proof on the debtor, while also understanding the exemption of minimum-subsistence deposits from attachment as a mandatory rule intended to guarantee the debtor’s right to subsistence. On this interpretation, set-off against minimum-subsistence deposits may likewise be subject to ex post limitations in its legal effect to a certain extent, and the resulting ex post restitution and settlement structure may impose substantial legal and administrative costs on both debtors and financial institutions. From a behavioral economics perspective, this study further argues that the resistance of debtors within the minimum-subsistence range to set-off should not be viewed as mere irrationality, but rather as a rational response shaped by the need to secure survival liquidity, present-biased consumption preferences, and expectations of debt restructuring. From a law-and-economics perspective, it also examines how restrictions on set-off against minimum-subsistence deposits are consistent with the constitutional imperatives of human dignity and the guarantee of a minimum standard of living, while at the same time potentially generating social costs—such as weakened repayment incentives, reduced credit supply, and financial exclusion—if imposed in a uniform and inflexible manner. Accordingly, this study proposes the need to reform the current system governing exempt deposits from attachment as a matter of legislative policy. At the same time, as practical alternatives within the existing legal framework, it explores the feasibility of institutionalizing an integrated deposit inquiry system across financial institutions and a structure based on the debtor’s voluntary choice, combining a set-off opt-in mechanism with conversion to a subsistence-protection account. In doing so, this study seeks to demonstrate, at a theoretical level, that the protection of vulnerable debtors and the efficiency of the financial system are not inherently conflicting values, but rather issues capable of being reconciled through institutional design.