2020Da230239 Cancellation of the right to collateral security

Plaintiff

Law Firm Korean Law Firm

Attorney Lee Dong-ho

Defendant

[Plaintiff-Appellant] LbnB Partners

Attorney Kim Jong-soo et al.

Gwangju High Court ( Jeonju) Decision 2019Na12591 Decided May 7, 2020

February 25, 2021

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Whether the proceedings of the court below are unconstitutional

Examining the record, the lower court cannot be deemed to have erred by infringing the right to fair trial and the right to equality under the Constitution on the grounds that the lower court followed the judgment of the first instance court, which dismissed the Plaintiff’s primary claim, and partly accepted the primary claim and the conjunctive claim added by the lower court.

2. Whether unjust enrichment with respect to interest exceeding the legal limit is established (the grounds of appeal as to the principal claim)

The lower court determined that the Defendant, as a credit service provider that completed the registration of a credit business, lent money as indicated in the table 1-11, 13, and 14 attached to the lower judgment to the Plaintiff, and received interest exceeding the limited interest rate under the former Act on Registration of Credit Business, etc. and Protection of Finance Users (amended by Act No. 14072, Mar. 3, 2016; hereinafter referred to as the “former Credit Business Act”), and that the Plaintiff was obligated to return it to the Plaintiff as unjust enrichment.

Examining the reasoning of the lower judgment in light of the record and relevant legal principles, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the burden of proof, thereby failing to exhaust all necessary deliberations, etc.,

3. Whether an act of violating the Interest Limitation Act constitutes a tort, and whether a person who mediates a monetary transaction also is liable for a joint tort (the grounds of appeal as to preliminary claim)

A. The Interest Limitation Act was enacted to ensure the stability of national economic life and economic justice by setting a reasonable ceiling on interest (Article 1) and to protect a low-income self-employed person and low-income ordinary people so that they can not easily become bad credit holders due to high interest rates. The main contents are as follows. The maximum interest rate under contract for monetary lending shall be prescribed by Presidential Decree within the scope not exceeding 25 percent per annum (Article 2(1)). The contractual interest rate shall be null and void (Article 2(3)). If a debtor voluntarily pays interest exceeding the maximum interest rate, the amount equivalent to the interest paid in excess shall be appropriated for the principal, and if the original is extinguished, the return thereof may be claimed (Article 2(4)). Meanwhile, Article 8(1) of the Interest Limitation Act provides for criminal punishment against a violation of the Interest Limitation Act by prescribing that a person who received interest exceeding the maximum interest rate prescribed in Article 2(1) shall be punished by imprisonment with prison labor for not more than one year or by a fine not exceeding 10 million won.

In light of the legislative purpose of the Interest Limitation Act, the provisions on the maximum limit of interest and the criminal punishment provisions on the act of violation, barring any special circumstance, in cases where a creditor who lent money causes damage to an obligor by receiving interest exceeding the maximum interest rate due to intentional or negligent violation of the Interest Limitation Act, barring any special circumstance, a tort shall be established pursuant to Article 750 of the Civil Act. Since interest paid in excess of the maximum interest rate is appropriated to the principal pursuant to Article 2(4) of the Interest Limitation Act, the excess amount remaining after the original amount is extinguished can be deemed as losses due to a violation of the Interest Limitation Act. The right to claim for return of unjust enrichment and the right to claim for damages due to unlawful act are separate claims, and the establishment of a tort is not hindered merely because

Furthermore, a person who jointly committed or participated in an act violating the Interest Limitation Act with a creditor is jointly and severally liable for damages pursuant to Article 760 of the Civil Act.

B. According to the reasoning of the lower judgment, the following facts are revealed. On December 23, 2015, Nonparty 1 and Nonparty 2 agreed to lend KRW 200 million to the Plaintiff on June 30, 2016, including interest equivalent to KRW 150% per annum on June 30, 2016. Nonparty 1 received KRW 340 million in total from September 2, 2016 to September 13, 2016, and Nonparty 2 received KRW 435 million in total from September 6, 2016 to December 28, 2016, and received the highest interest rate exceeding the interest rate prescribed by the Interest Limitation Act.

Based on the above facts, the lower court recognized that the tort committed by Nonparty 1 and Nonparty 2 was established, and calculated the amount of damages by paying the interest, delay damages, and the principal calculated according to the highest interest rate prescribed by the Interest Limitation Act, in the order of the principal, in which the Plaintiff repaid the money. In addition, in the course of mediating the above monetary transaction, the Defendant actively participated in the act of violating the Interest Limitation Act by Nonparty 1 and Nonparty 2, the lower court determined that the Defendant

Examining the reasoning of the lower judgment in light of the foregoing legal doctrine, the lower judgment is justifiable in so determining. In so determining, the lower court did not exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal, and did not err by misapprehending the legal doctrine on interest limitation and joint tort, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

The Defendant’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

The presiding Justice shall mobilization by the presiding Justice

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok