『不法行為から生じた債権と相殺』

抄録

Set-off is to make a couter demand. In practice the term"set-off"is generally applied to mutual debts or claims for liquidated amounts, so that one can be deducted from the other : while cross claims in respect of damages, which are unliquidated, are distinguished as"counterclaims". In Roman law, a person who has got possession of property by theft or other wrongful act may not plead a set-off against the owner's claim to recover what belongs to him. Japanese civil law article 509 regulated as follows : Where the obligation has arisen from an unlawful act, the obligor cannot avail himself of a set-off against the obligee. This article derives from BGB §393 German civil code. According to the article, set-off is not permissible against a claim arising from a wilful delict. Generally speaking, no advantage arises out of a wrong. That however depends upon. We should broadly permit to offset even in the case of tort. In the same way as German civil law regulates, Chinese and Korean civil codes allow to off-set. These code's expressions are almost similar to German civil law S393. German civil law is more ideal than Japanese one and is superior to ours. Set-off should be restricted to only wilful delict. No abusing of the right to set-off is permissible.