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1. The Defendant’s notary public against the Plaintiff is a compulsory execution based on the No. 342 of the C Deed No. 2017.
Reasons
1. Facts of recognition;
A. On March 28, 2017, Nonparty D borrowed interest of KRW 10,000,000 per month from the Defendant, and the due date of payment on May 28, 2017, Nonparty D borrowed KRW 1,00,000 per month, and the Plaintiff jointly and severally guaranteed D’s debt.
B. On March 28, 2017, D and the Plaintiff: (a) a notary public, who prepared and delivered to the Defendant a notarial deed No. 342, 2017, stating that the said notarial deed will accept compulsory execution in the event of nonperformance of the said obligation; and (b) the said notarial deed entered interest on the said notarial deed as 25% per annum.
C. D paid each of the principal amount of KRW 9,00,000 on April 28, 2017, KRW 1,000,000, KRW 1,000 on May 31, 2017, KRW 7, 2017, KRW 1,000 on July 7, 2017, and KRW 9,00,000 on June 5, 2017.
[Ground of recognition] Facts without dispute, entry of Gap 1 to 6 evidence, purport of the whole pleadings
2. The portion of interest under a monetary loan agreement, which exceeds the maximum interest rate prescribed by the Interest Limitation Act, is null and void. If an obligor has voluntarily paid interest exceeding the maximum interest rate, the amount equivalent to the interest paid in excess shall be appropriated for the original capital (see, e.g., Supreme Court Decision 2012Da81203, Feb. 14, 2013). Furthermore, even if an agreement was reached contrary to the interest rate stated in a notarial deed accepting compulsory execution, compulsory execution by notarial deeds is permitted only within the scope of the interest rate stated in the deed
D and the Defendant’s maximum interest rate under the Interest Limitation Act at the time of entering into the said monetary loan contract is 25% per annum. As such, the amount equivalent to the interest exceeding the above maximum interest rate out of the amount D paid to the Defendant as interest shall be appropriated for the principal.
Therefore, among D’s interest payment of KRW 1,00,00,000, the outstanding principal of KRW 10,000,000, the interest payment of KRW 25% per annum from March 28, 2017 to April 28, 2017 exceeds KRW 219,178,822, the interest payment of KRW 1,000 shall be appropriated for the repayment of principal, and the remainder of KRW 9,219,178 (10,00,000-780,82) shall be appropriated for the repayment of principal.