[사해행위취소][공2021상,886]
[1] Whether it is against the principle of pleading to determine whether it is against the principle of pleading by recognizing the fact that the parties did not assert any major facts (affirmative)
[2] In a case where the amount of advance interest deduction exceeds the amount calculated according to the maximum interest rate under the Interest Limitation Act by making the amount actually received by the obligor as the principal, whether the excess amount should be deemed as being appropriated to the original (affirmative)
[1] It is against the principle of pleading that recognizes the fact that the parties did not assert the major facts constituting the legal requirement.
[2] According to Article 2(1), (3), and (4), and Article 3 of the former Interest Limitation Act, and Article 2(1) of the former Interest Limitation Act (amended by Presidential Decree No. 25376, Jun. 11, 2014) concerning the maximum interest rate under a contract for monetary lending and lending (amended by Presidential Decree No. 25376, Jun. 11, 2014), the maximum interest rate under a contract is 30% per annum; the contractual interest exceeding the above maximum interest rate is null and void; where the obligor voluntarily paid the interest exceeding the above maximum interest rate, the amount equivalent to the interest paid shall be appropriated for the principal; and where the obligor deducts the advance interest from the advance interest, the excess amount shall be deemed appropriated for the principal if the amount actually received by the obligor exceeds the amount calculated based on the above maximum interest rate.
[1] Article 203 of the Civil Procedure Act / [2] Article 2(1), (3), (4), and Article 3 of the former Interest Limitation Act (Amended by Act No. 12227, Jan. 14, 2014); Article 2(1) of the former Interest Limitation Act (Amended by Presidential Decree No. 25376, Jun. 11, 2014)
[1] Supreme Court Decision 81Meu550 Decided April 27, 1982 (Gong1982, 557), Supreme Court Decision 2015Da205536 Decided October 25, 2018 / [2] Supreme Court Decision 2012Da55198 Decided October 11, 2012
Plaintiff (Attorney Lee Dong-hoon et al., Counsel for the plaintiff-appellant)
Defendant (Law Firm LLC, Attorneys Lee Dong-hwan et al., Counsel for the defendant-appellant)
Suwon District Court Decision 2019Na76344 decided November 3, 2020
The judgment of the court below is reversed, and the case is remanded to Suwon District Court.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. As to the assertion of violation of the principle of pleading
Recognizing the fact that the parties did not assert with respect to the major facts constituting legal requirements, it is against the principle of pleading (see, e.g., Supreme Court Decisions 81Meu550, Apr. 27, 1982; 2015Da205536, Oct. 25, 2018).
According to the reasoning of the judgment below and the records, the court below presumed that the non-party 1 lent a total of KRW 320,000,000 to non-party 2 three times, and confirmed that the non-party 2 and the non-party 1 did not repay part of the amount loaned to the non-party 2 and confirmed that the non-party 2 did not repay part of the amount, and agreed that the plaintiff would receive the above loan claim from the non-party 1 and receive the payment from the non-party 2, and accordingly, specified the existence and scope of the secured claim as the transferred loan claim, and partly accepted
However, according to the records, the plaintiff did not assert that the sum of the money lent by the non-party 1 to the non-party 2 was KRW 320,000,000, and there is no evidence to deem that the plaintiff made such assertion indirectly even on the record. Nevertheless, the court below made a judgment on the basis of the fact that the parties did not assert. In so doing, the court below erred by misapprehending the principle of pleading and thereby affecting the conclusion
2. As to the assertion that there was a misapprehension of the legal principle on the appropriation of the principal of the interest, which exceeds the interest under the Interest Limitation Act
According to Article 2(1), (3), and (4), and Article 3 of the former Interest Limitation Act (amended by Act No. 1227, Jan. 14, 2014); and Article 2(1) of the former Interest Limitation Act (amended by Presidential Decree No. 25376, Jun. 11, 2014); the maximum interest rate under a contract for monetary lending is 30% per annum; the contractual interest exceeding the above maximum interest rate is null and void; where a debtor voluntarily pays interest exceeding the above maximum interest rate, the amount equivalent to the interest paid in excess shall be appropriated for the original; and where a debtor deducts the advance interest from the advance interest exceeds the amount calculated according to the above maximum interest rate, the excess amount shall be deemed appropriated for the original (see Supreme Court Decision 2012Da5198, Oct. 11, 2012).
According to the reasoning of the lower judgment, when Nonparty 1 delivers the loan as of April 28, 201 and the loan as of December 5, 2011 to Nonparty 2 for the convenience of calculation, the lower court revealed the fact that the amount deducted from the advance interest exceeding the interest under the Interest Limitation Act was calculated as the repayment amount received from Nonparty 2 on that day.
In so determining, the lower court erred by misapprehending the legal doctrine on the appropriation of advance interest in excess of the interest under the Interest Limitation Act, thereby adversely affecting the conclusion of the judgment.
3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Jae-hyung (Presiding Justice)