Although the Defendants agreed to interest within the scope of the statutory interest rate, as long as they actually received excess interest, they violated the interest rate limit under the Act on Registration of Credit Business and Protection of Financial Users (hereinafter “Credit Business Act”), and thus, the facts charged in the instant case are fully convicted, the lower court erred by misapprehending the legal doctrine that acquitted the Defendants, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. Summary of the facts charged

Defendant 1 is an auditor of Defendant 2, and Defendant 2 is a corporation established for the purpose of credit business and loan brokerage business.

1) Defendant 1

No credit service provider may charge more than 49% of the annual interest rate.

Nevertheless, on November 6, 2008, the Defendant established a right to collateral security on the apartment owned by Nonindicted Party 1 (the Nonindicted Party in the judgment of the Supreme Court) at the office of Nonindicted Party 2 certified judicial scrivener office located in Seongdong-gu, Daegu-gu, Daegu-gu, and loaned KRW 20,00,000, and collected the total amount on November 1 of the same month, and received KRW 600,000,000, which is the legal interest of KRW 49% per annum.

2) Defendant 2

Defendant 1 had Defendant 1 perform the same act as that of the above 1) in relation to his duties.

B. The judgment of the court below

In full view of the Defendants and Nonindicted 3’s respective legal statements, the lower court determined that ① Defendant 1’s auditor of Defendant 2, on November 6, 2008, determined that the repayment date to Nonindicted 1 on February 5, 2009 was 3% per annum and loaned KRW 20 million to Nonindicted 1, and deducted KRW 600,000 from the interest rate in advance, and remitted KRW 19,40,00 to Nonindicted 1. However, the lower court determined that Nonindicted 3, the husband of Nonindicted 1, who was Defendant 1, was able to recognize that payment was made through Nonindicted 2’s office designated by Defendant 1 on November 11, 2008, through which the payment date was made, and that in order to punish him as a violation of the limitation of interest rates under the Act on Registration of Credit Business and Protection of Finance Users, if the credit service provider was found to have received interest more than 49% per annum, and thus, he could not be punished after deducting the above interest rate of Defendant 1’s ex post facto interest rate limit.

C. Judgment of the court below

1) According to the evidence duly adopted and examined by the court below, the following facts are revealed: ① Defendant 1, on November 6, 2008, set the maturity date to Nonindicted 1 on February 5, 2009 and to lend KRW 20 million to Nonindicted 1 on a monthly basis; Defendant 1 set the maximum debt amount to Nonindicted 1’s Daegu Northern-dong, which is owned by Nonindicted 1 as a collateral, and set up a mortgage with respect to Nonindicted 1’s Daegu North Korea-dong, which is owned by Nonindicted 1 as a collateral, with the maximum debt amount of KRW 32 million; Defendant 200,000 won, which is the interest of KRW 19,40,000,000,000,000 won, was deducted to Nonindicted 1; ② the contract at the time of the above loan stated the phrase “3% of the repayment fee; ③ Nonindicted 1’s husband, Nonindicted 3, the husband, on the same date, can be acknowledged to be Defendant 1, 2008.

2) In light of the above facts, when Defendant 1 paid interest on the instant loan transaction with Nonindicted Party 1 at 3% per month, and deducted KRW 600,000,000 per annum on November 1, 2008, Defendant 1 received interest within the limit of the interest rate (49% per annum) stipulated under the Credit Business Act and the Enforcement Decree thereof, even if Defendant 1 received the interest within the limit of the interest rate (49% per annum), Defendant 1 did not settle the said KRW 600,000,000,000, which was agreed on November 11, 2008, which was five days after the payment, according to the actual loan period, and did not return it to Nonindicted Party 1 without settling it. The time when interest was paid, when a credit service provider received the interest in relation to the loan regardless of the pretext, and when the credit service provider received it as at 5% per annum, it is reasonable to deem that Defendant 1 violated the restriction on the interest rate under the Credit Business Act as of January 1, 2008.

3) However, in the case of a loan for consumption with interest payment, the benefit of the term is for both the obligee and the obligor, and if the repayment is made before the due date, the other party shall compensate for the loss of the term. The loan transaction agreement between Defendant 1 and Nonindicted 1 includes the content that the commission for the redemption before the due date should be 3%. The nature of the above contract for the redemption before the due date includes the obligee's repayment of the loan from the obligor before the due date and the obligee's repayment of the loan to compensate for the loss incurred by the obligor due to the obligor's loss of the due date. The above part exceeding the interest rate of five days out of the above 600,000 won exceeds the above 60,000 won is the part that the Defendants could have lawfully acquired under the above agreement. Thus, in particular, in this case where the Defendants received the fees corresponding to the actual amount of the loan prior to the due date, it cannot be deemed that the Defendants received the interest exceeding the interest rate prescribed in the Credit Business Act.

3) Therefore, the lower court’s conclusion that found the instant facts charged not guilty is justifiable, and thus, the Prosecutor’s assertion cannot be accepted.

3. Conclusion

Therefore, the appeal by the prosecutor is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since all of the appeal by the prosecutor is without merit. It is so decided as per Disposition.

Judges No. Ro-soon (Presiding Judge)