Based on the argument that there is no subjective relevance
(agreement) between debtors of non-real joint obligation, the Supreme
Court has taken the position that the absolute effect of a setoff by one
debtor on a non-real joint obligation cannot be recognized, despite the Civil
Law article 418 recognizing the absolute effect of a setoff on a joint
obligation. The court’s intention is to guarantee the creditor, who is the
tort victim, to receive realistic compensation for damage from the joint
tortfeasors. But this overlooks the problem of double compensation that
can occur when the victim (creditor) sets off an existing debt owed by
one of the joint tortfeasors and discharges the obligation but still claims
the entire compensation amount from the rest of the joint tortfeasors. As
a result, at times unfairness has occurred between the joint tortfeasors
with respect to exercising the right of indemnity.
Through the subject decision, however, the Supreme Court, by
recognizing as an absolute effect the effect of a setoff by one of the
tortfeasors based on the one-off principle of compensation for damage,
changed precedent by ruling that the victim can claim from the other
joint tortfeasors the compensation amount minus the setoff amount.
This position of the Supreme Court is reasonable because it eliminates
double claiming of debt and preserves the one-off principle of repayment.
It also promotes specific reasonableness by enabling the debtor (a joint
tortfeasor), who exercised the right of setoff, to exercise the right of indemnity against the other joint tortfeasors. Ultimately even in the case
of non-real joint obligation, in order to realize “one-off payment” and “fair
sharing of compensation responsibility between debtors” that make up the
basic properties of debt, the subject court decision agrees with the position
of a majority of academic opinions that find it reasonable to accept the
absolute effect, even if the tort victim (creditor) is unable to receive a
realistic compensation and has to settle for passive compensation through a
setoff, and thereby recognizes the absolute effect of a setoff by one debtor
of a non-real joint obligation against the other joint debtors. This decision
that breaks from precedent is reasonable.