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 loan of money between a credit service provider and an obligor is considered as interest-free (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, in light of all the circumstances, such as the terms and conditions of return, time, and the credit service provider’s intent or behavior, etc., 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 collected money actually belongs to the credit service provider.

2. The court below found the Defendants 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 Defendants not guilty on the ground that, in addition to the fact that the obligor agreed to return the principal or the principal and interest when the obligor redeems the principal or the principal and interest, and that the amount of money equivalent to 17% of the deposit or the amount of investment can be returned as the basis of the above agreement at the time of returning the principal or the principal and interest, the amount calculated by deducting the deposit or the amount of investment money from the amount of money paid by the Defendant

3. However, according to the evidence duly adopted by the first instance court, although the Defendants and debtors agreed to return the instant investment amount, the debtors could not receive the 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 there was a case where the investment amount has been continuously increased by deducting the investment amount from each extension or additional loan, and there was a case where the investment amount has been more than the loan principal by deducting the investment amount separately. Some debtors stated that the credit service providers could not make any contact by changing the trade name or telephone number at the time of the return of the investment amount. Accordingly, it is highly likely that the instant investment amount actually belonged to the Defendants, the credit service provider, as the loan provider.

Therefore, the lower court should have deliberated on whether the instant investment funds actually belong to the Defendants by examining all the circumstances concerning the terms and conditions of the return of the instant investment funds, the credit service provider’s intent or behavior, etc., and should have determined whether the instant investment funds constitute a crime of violating the Credit Business Act due to the violation of the restriction on interest rates.

Nevertheless, without examining whether the investment funds in this case actually accrue to the Defendants, the court below held the Defendants not guilty on the ground 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, and the possibility of deducting the investment funds at the time of returning the principal and interest, etc.

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)