1. The purport of Article 8(2) of the Act on Registration of Credit Business, etc. and Protection of Finance Users (hereinafter “Credit Business Act”) is to prevent an evasion of the law used by a credit service provider as a means of collecting money from an obligor under the pretext of honorariums, discounts, fees, mutual aid funds, interest, substitute payments, etc. Therefore, regardless of the pretext thereof, the payment related to a lending and borrowing of money between a credit service provider and an obligor is considered to be interest (see Supreme Court Decision 2014Da24785, Nov. 13, 2014). Furthermore, even if a credit service provider agreed to return money collected from an obligor later to the obligor, considering all the circumstances such as the terms and conditions of return, time, and the intent or behavior of a credit service provider, if the agreement is merely the formality to avoid the restriction rate under the Credit Business Act, and if it is actually impossible or considerably difficult to return it, it shall be deemed that the money actually collected has been reverted to the credit service provider.

2. The court below found the Defendant not guilty on the ground that, in light of the purport of Article 8(2) of the Credit Business Act and the purport of Article 8(2) of the same Act, the amount of money received by the Defendant and owned by the credit service provider, i.e., the amount of money not returned, regardless of its name, and the amount of money paid during the return period, should not be regarded as interest. In addition, the court below found the Defendant not guilty on the ground that the amount of deposit or the amount of money paid by the Defendant deducted by the credit service provider cannot be regarded as the interest received by the credit service provider, in addition to the fact that the debtor agreed to return the principal or the amount of the investment in this case where the debtor redeems the principal or the principal and interest, and that the amount of money equivalent to 17% of the deposit or the amount of the investment can be returned to some debtors according to

3. However, according to the evidence duly adopted by the first instance court, although the defendant and the debtor agreed to return the investment amount of this case, the debtor may receive a refund of the investment amount only after the lapse of 100 days from the last day of the transaction pursuant to the above agreement, so it could not be returned if the transaction continues due to an extension or additional loan, and there was a case where the investment amount has been continuously increased by deducting the investment amount for each extension or additional loan, and there was a case where the investment amount has been more than the loan principal. Some debtors stated that the credit service provider could not take contact by changing the trade name and telephone number on the date of return of the investment amount, and therefore, there is a lot of concern that the investment amount of this case may substantially be reverted to the defendant who are the credit service provider

Therefore, the lower court should have deliberated on whether the instant investment amount actually belonged to the Defendant by examining all the circumstances and timing of the return of the instant investment amount, such as the credit service provider’s intent or behavior, etc., and determined whether the Defendant committed a crime of violating the Credit Business Act due to the violation of interest rate limitation.

Nevertheless, the court below, without examining whether the investment funds in this case actually belong to the defendant, held that the investment funds in this case did not constitute interest on the grounds of the agreement to return the investment funds in this case, the partial return of the investment funds, the possibility of deducting the investment funds in the case of returning the principal and interest, etc., and held the defendant not guilty immediately, is erroneous in the misapprehension of legal principles as to deemed interest interest under Article 8(2) of the Credit Business Act,

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)