In a case where, even if a monetary loan agreement was concluded before the enforcement of Article 8(1) of the former Interest Limitation Act, interest accrued after the enforcement of the said provision exceeds the limited interest rate under Article 2(1) of the said Act, whether the said provision is punished pursuant to Article 8(1) of the said Act (affirmative)

Article 8(1) of the former Interest Limitation Act (amended by Act No. 10925, Oct. 26, 2011; hereinafter the same shall apply) (amended by Act No. 12227, Jan. 14, 2014); and Article 8(1) of the same Act (amended by Act No. 10925, Jul. 25, 2011; hereinafter the same) newly established a penal provision stating “any person who has received interest exceeding the maximum interest rate prescribed in Article 2(1) shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding ten million won (hereinafter referred to as “Punishment Regulations”).

Article 1 of the former Interest Limitation Act provides that “The purpose of this Act is to ensure the stability of national economic life and to realize economic justice by prescribing the appropriate maximum limit of interest.” Article 2(1) provides that “The maximum interest rate on monetary lending and lending contract shall be prescribed by Presidential Decree within the scope not exceeding 30% per annum” (amended by Presidential Decree No. 25376, Jun. 11, 2014) provides that “The maximum interest rate on contractual lending and lending of money under Article 2(1) of the Interest Limitation Act shall be 30% per annum.” In addition, Article 8(1), which is a penal provision, explicitly provides that “a person who receives interest exceeding the maximum interest rate under Article 2(1) shall be punished,” and the Addenda provides that “This Act shall enter into force on three months after the date of its promulgation (paragraph (1)).” This Act shall also apply after this Act enters into force.”

In light of the above legislative purpose, content, and purport of the former Interest Limitation Act, even if an agreement for a monetary loan was concluded prior to the enforcement of the penal provision, if interest exceeding the interest rate under Article 2(1) of the former Interest Limitation Act on the interest accrued after the enforcement of the penal provision was received, it shall be punished in accordance with the penal provision.

Articles 1, 2(1), and 8(1) of the former Interest Limitation Act (Amended by Act No. 1227, Jan. 14, 2014); Articles 1, 2(1), and 8(1) and 8(2) of the Addenda (Amended by Act No. 1102, Jul. 25, 201)

Defendant

Prosecutor

Jeju District Court Decision 2015No558 decided July 21, 2016

Of the lower judgment, the part of the lower judgment’s acquittal on February 1, 201, around March 10, 2011, around April 5, 2011, around June 17, 2011, and around August 8, 2011, of each of the violation of the Interest Limitation Act under each monetary loan agreement shall be reversed, and that part of the case shall be remanded to the Panel Division of the Jeju District Court. The remainder of the appeal shall be dismissed.

The grounds of appeal are examined.

1. As to the non-guilty portion of each of the violation of the Interest Limitation Act based on each monetary loan agreement around February 1, 2011, around March 10, 201, around April 5, 2011, around June 17, 201, and around August 8, 2011

A. Article 8(1) of the former Interest Limitation Act (amended by Act No. 10925, Oct. 26, 2011; hereinafter the same shall apply) (amended by Act No. 12227, Jan. 14, 201; hereinafter the same) which was amended on July 25, 2011, newly established a penal provision stating that “any person who receives interest exceeding the maximum interest rate prescribed in Article 2(1) shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding 10 million won” (hereinafter referred to as “instant penal provision”).

B. The lower court determined as follows: (a) as to the changed facts in the instant charges, “the Defendant loaned to the Nonindicted Party the amount calculated by deducting each of the interest rates from the former interest rates at KRW 5 million around February 1, 201; (b) around March 10, 201; (c) around April 5, 201; and (d) around June 17, 201; and (d) around August 8, 201, the amount calculated by deducting each of the interest rates at KRW 5 million from the former interest rates at KRW 30%, which is an interest rate under the Interest Limitation Act, after the enforcement of the instant penal provision; and (d) based on the circumstances stated in its reasoning, the lower court determined as follows: (a) the instant penal provision was not implemented after the enforcement of the instant penal provision; and (b) the instant agreement was concluded and its interest rate was clearly higher than the interest rate under the Interest Limitation Act.”

C. However, we cannot accept the above determination by the court below for the following reasons.

(1) Article 1 of the former Interest Limitation Act provides that “The purpose of this Act is to ensure the stability of national economic life and to realize economic justice by prescribing an appropriate maximum limit of interest.” Article 2(1) of the same Act provides that “The maximum interest rate under contract for monetary lending and lending shall be determined by Presidential Decree within the scope not exceeding 30% per annum.” Article 2(1) of the Interest Limitation Act provides that “The maximum interest rate under contract for monetary lending and lending under Article 2(1) of the Interest Limitation Act (amended by Presidential Decree No. 25376, Jun. 11, 2014) shall be 30% per annum.” In addition, Article 8(1) of the same Act, which is the instant penal provision, explicitly provides that “a person who receives interest exceeding the maximum interest rate under Article 2(1) shall be punished,” and the Addenda provides that “The interest rate under this Act shall be calculated after the date on which three months have elapsed since its promulgation and enforcement (Article 2(1)) of this Act).”

In light of the above legislative purpose, contents, and purport of the former Interest Limitation Act, even if a monetary loan agreement was concluded prior to the enforcement of the instant penal provision, if interest exceeding the interest rate under Article 2(1) of the former Interest Limitation Act on the interest accrued after the enforcement of the instant penal provision, it shall be deemed that the instant penal provision is punished.

(2) Therefore, the lower court should have deliberated on whether the Defendant received interest exceeding the interest rate set forth in Article 2(1) of the former Interest Limitation Act as stated in the revised facts charged with respect to the interest accrued after the enforcement of the instant penal provision, and determined whether the modified facts charged constitute the crime of violating the Interest Limitation Act.

Nevertheless, the court below rendered a judgment not guilty on the ground that the revised facts charged in this case constitute a crime. In so doing, the court below erred by misapprehending the legal principles on the violation of the Interest Limitation Act, thereby adversely affecting the conclusion of the judgment. The prosecutor’s ground of appeal pointing this out is

2. As to the non-guilty portion of each of the violation of the Interest Limitation Act based on each monetary loan agreement around the end of 2009, around July 12, 2010, around July 27, 2010, around November 15, 201, and around May 23, 201

A prosecutor filed an appeal regarding this part of the judgment below, but does not indicate the grounds for objection in the petition of appeal or appellate brief.

3. Conclusion

Therefore, of the lower judgment, the part of the lower judgment’s acquittal on February 1, 201, around March 10, 2011, around April 5, 2011, around June 17, 2011, and around August 8, 2011, of each of the violation of the Interest Limitation Act under each monetary loan agreement is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remainder of the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)