(영문) 서울중앙지방법원 2019.2.15. 선고 2017고합1062 판결

However, from the date this judgment became final and conclusive, the execution of the above punishment shall be suspended for Defendant A for three years, and for Defendant B for two years.

Reasons

Criminal facts

【Criminal Power】

On August 13, 2015, Defendant A was sentenced to one year of imprisonment for fraud at the Seoul Central District Court (hereinafter “Seoul Central District Court”) and was confirmed on September 7, 2016 and is still under the suspension of execution.

【Criminal Facts】

Defendant A served as a financial expert while serving as a director of the Co., Ltd., and Defendant B, as the representative director of the D Co., Ltd. around May 2013, became aware of the fact that Defendant A became aware of the fact at a F Elementary School parent group, which is an elementary school attached to the E University.

On September 25, 2013, Defendant B made a false statement to the victim at the Gangnam-gu Seoul Building and the victim M's house located in H, and that, “B and B established the company to acquire the KOSDAQ-listed company, if the acquisition cost of listed companies is required and the listed company is to be paid at 4% as principal and monthly interest and 4% until March 25, 2014,” and Defendant A, who was next to that, had worked in a financial company in the United States as a financial specialist, and upon the acquisition of listed companies in Korea, paid KRW 1 billion to the victim immediately by causing the financing of the company, and as a security therefor, Gangnam-gu Seoul Special Metropolitan City J apartment apartment's lease deposit amount of KRW 390,000,000,000,000, which is leased under the name of wife I.”

However, there was no fact that the Defendants had promoted the acquisition of the KOSDAQ-listed companies at the time, and even if they had already received a loan equivalent to KRW 390 million of the deposit for the lease on a deposit basis as security, they did not notify the victim of such fact. Of KRW 1 billion borrowed from the victim, Defendant A did not have any intent or ability to repay the above loan on the date of promising to use the deposit for the non-use purpose by Defendant B as the repayment of the existing debt with respect to L, and KRW 300 million as of the date of promising to use it for the non-use purpose.

As a result, the Defendants conspired to deception the victim and received a total of KRW 100,000,000 won cashier's checks from the victim and issued KRW 100,000,000 to KRW 10,000.

Summary of Evidence

1. Defendants’ respective legal statements

1. Each legal statement of M or L;

1. Examination protocol of interrogation of the Defendants and M by prosecution

1. Each of the statements made by the Defendants, M, and L among the suspect interrogation protocol of the police officer against the Defendants, M, and L

1. Loan certificates, promissory notes, certificates of personal seal impression, copies of cashier's checks, certificates of transfer contract of deposit for lease on a deposit basis, certificates of deposit for lease on a deposit basis, certificates of deposit for lease on a deposit basis, real estate lease contract, details of transactions, recording records, inquiries about bonding, opinions

1. Previous convictions indicated in the judgment: Criminal records, etc., inquiry report, written opinions on related cases, etc. (A)

Application of Statutes

1. Article applicable to criminal facts;

Defendants: Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 13719, Jan. 6, 2016); Article 347(1) of the Criminal Act; Article 30 of the Criminal Act

1. Handling concurrent crimes;

Defendant A: the latter part of Article 37 and Article 39(1) of the Criminal Act (trade between the crime and the crime of fraud for which judgment has become final and conclusive)

1. Discretionary mitigation;

Defendants: Articles 53 and 55(1)3 of the Criminal Act (The conditions favorable to the reasons for sentencing below)

1. Suspension of execution;

Defendants: Articles 62(1) of the Criminal Act (The following provisions for sentencing) and 62(1)

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

A. Defendant A

On September 25, 2013, Defendant A borrowed KRW 1 billion from the victim on March 4, 201 and due date on March 25, 2014, and provided KRW 390,000,000,000,000,000,000, which is the residential area leased under the name of Defendant A as collateral, as well as KRW 150,000,000,000,000,000,000 from financial institutions as collateral was not notified to the victim. However, the above deposit was worth securing KRW 24,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00.

However, since the sale of the business right to the above business promoted by the defendant is nonexistent and the above land, etc. is sold by public auction, it is merely impossible to repay the borrowed money to the victim, and it does not constitute borrowing from the beginning without the intention or ability to repay from the beginning.

B. Defendant B

When Defendant A borrowed KRW 1 billion from the victim, Defendant B provided a guarantee only for KRW 300 million out of the loan debt, and on September 25, 2013, Defendant A and the victim was found together with Defendant A, or borrowed KRW 1 billion from Defendant A jointly with the victim. Defendant A had no intent and ability to repay the debt at the time. In fact, Defendant A and the aforementioned 300 million guaranteed obligation was fully repaid.

2. Determination

A. Relevant legal principles

1) The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the Defendant’s financial history, environment, details of the crime, and the process of performing the transaction before and after the crime, unless the Defendant makes a confession (see, e.g., Supreme Court Decision 97Do2630, Jan. 20, 198). The criminal intent is sufficient not to have a conclusive intention but to have dolusive intent (see, e.g., Supreme Court Decision 83Do340, May 10, 1983). The criminal intent of the defraudation with the fact of default in the civil monetary lending and lending relationship, cannot be recognized, but if the Defendant borrowed the money by pretending that the Defendant would have no intent to repay or had no ability to repay within the date of maturity as agreed upon (see, e.g., Supreme Court Decision 86Do127, Sept. 9, 1986).

2) The deception, which is a requirement for fraud, refers to all affirmative or passive acts that have a good faith and sincerity to fulfill one another in property transaction. It is sufficient to say that such deception does not necessarily require false indication as to the important part of a juristic act, but rather constitutes the basis of judgment for making an actor take a disposition of property which he/she wishes by omitting the other party into mistake (see, e.g., Supreme Court Decisions 2010Do14257, Jun. 30, 201; 201Do11856, Jan. 16, 2014; 2011Do18566, Jan. 16, 2014).

3) Although a crime of fraud is not established merely because of a mere failure to notify the true purpose of the borrowed money in the lending of money, if it is acknowledged that the victim borrowed money by deceiving the victims that the victims can be seen as making a big profit by an investment in the business and then used it for the purpose of repayment of the existing debt which is urgent, it can be deemed that there was a criminal intent of defraudation in the lending of money (see Supreme Court Decision 92Do2588, Jan. 15, 1993).

(b) Fact of recognition;

According to the evidence duly adopted and examined by this court, the following facts can be acknowledged.

1) Progression, etc. of the project

A) The P Co., Ltd., the representative director of which Defendant A is the representative director (hereinafter referred to as “P”) purchased 5,350,000 won from Q Q Co., Ltd. (hereinafter referred to as “R”) to purchase 5,30,000 won in the purchase price of the instant land through public sale on November 13, 2012.

B) On October 2012, Defendant A borrowed KRW 600 million from S and borrowed KRW 600 million from S and on October 26, 2012, Defendant A created a collateral security right with the mortgagee S and the maximum debt amount as KRW 600 million on the Seodaemun-gu Seoul (hereinafter referred to as “U building”) registered in the name of the mother T, Seodaemun-gu, Seoul (hereinafter referred to as “U building”), which was registered in the name of the mother T, with Defendant A. In order to prepare the instant land purchase price, P borrowed KRW 5.17 billion in total from Co. V and W in order to prepare the instant land purchase price, and the interest on the loan was KRW 50 million per month.

C) P made a real estate security trust agreement to secure P’s loans to each of the above savings banks as joint beneficiaries on November 21, 2012, at the same time as the registration of ownership transfer based on sale and purchase in the name of P, and entered into a real estate security trust agreement to secure P’s loans to Q and V (hereinafter “V”) and W (hereinafter “W”) as joint beneficiaries, and completed the registration of ownership transfer based on Q’s trust in accordance with such real estate security trust agreement.

D) On December 18, 2012, P entered into a contract for new construction works with X (hereinafter “X”) by setting the construction cost of KRW 10.48 billion until December 31, 2013. However, as X did not receive construction cost around February 2013, P suspended the new construction of zero buildings. Accordingly, Defendant A entered into a contract for new construction of KRW 1.178 billion in its name as part of intermediate payment loans from V and W (hereinafter “X”) and 1.2 billion in its name as part of intermediate payment loans, but the said contract for new construction works was not renewed on March 20, 2013, and the said contract for new construction works was concluded at KRW 1.1 billion in its name and KRW 2.5 billion in its construction cost, but the said contract for new construction works was not renewed on March 20, 2013.

E) As such, while the construction of the 0-built building has failed to support, P failed to pay interest on loans to each savings bank properly.

F) Meanwhile, around February 2014, Defendant A entered into a contract for business transfer and takeover (hereinafter “instant contract for business transfer and takeover”) with AB Co., Ltd. (hereinafter “AB”) practically operated by AA and 0,000,000 won to transfer all rights and obligations, such as the right to carry out the business (hereinafter “instant contract for business transfer and takeover”) and set down contract deposit at KRW 1 billion and the balance as KRW 800,000,000,000, but AB did not pay contract deposit

G) Ultimately, on May 2014, Q intended to conduct a public auction with respect to the instant land and the instant building (at the same time, about about 45% was carried out). At the time, the value of the instant land and the instant building was assessed to approximately KRW 10.9 billion, and AC concluded a sales contract with Q on July 1, 2015 and completed the registration of ownership transfer on the same day (the investigative record 690 pages).

2) The relationship between the Defendants and L, etc.

A) On May 2013, the Defendants came to know at the F Elementary School (the Defendant’s children were in school) parents group. Defendant B, from around 2010 to around 2010, was also introducing L to Defendant A while having known L who was carrying on a drinking house, etc. in Seoul Gangnam-gu.

B) Around early 2013, S applied for a voluntary auction against U building to Seoul Western District Court AD on May 6, 2013, and the decision to commence voluntary auction was rendered on May 6, 2013, and Defendant A asked Defendant B to seek funds to prevent such voluntary auction, and around July 22, 2013, Defendant B borrowed KRW 600 million from L through Defendant B to withdraw the application for voluntary auction after the repayment of the obligation to S. A. As security against the foregoing KRW 600 million, Defendant A filed for a registration of the right to claim ownership transfer against U building on July 23, 2013.

C) The Defendants and L had been traveling from August 2, 2013 to August 6, 2013. The Defendants were liable for KRW 300 million from the non-creditor through L due to travel expenses, gambling expenses, etc. (However, the said money was mainly used by Defendant B, and 807 pages of the investigation records).

3) Circumstances, etc. of the instant borrowing

A) L was aware of the fact that L had been operating a bond business with the victim, etc., while jointly operating a liquor house. L introduced the victim to repay the debt amounting to 300 million won as stated in paragraph (2)(c). The victim demanded the victim to provide a security, and around August 2013, the defendants provided the victim with this building sales contract as security and borrowed KRW 300 million from the victim.

B) Meanwhile, L wanted to recover KRW 600 million from A to prevent a voluntary auction of U.S. building. Defendant A did not have sufficient means to arrange for the amount of KRW 600 million at the time, so the Defendants and L agreed to pay 100 million interest per month at the time of borrowing the above KRW 300 million (the Defendant appears to have agreed to pay the above KRW 300 million interest at the time of borrowing the above KRW 300 million. In order to lower the interest rate, the Defendants borrowed KRW 1 billion from the victim and decided to borrow KRW 1 billion from the victim.

C) On September 25, 2013, the victim leased KRW 1 billion to the Defendants 4% of interest monthly and due date on March 25, 2014. As a security, the victim agreed to receive the claim for refund of KRW 390 million of the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the lease of the lease of the apartment in Gangnam-gu, Seoul (hereinafter “the deposit for the lease of the previous house”), which is the residence leased under Defendant 1’s name in Defendant 1’s wife, (hereinafter “the aforementioned loan of KRW 1 billion”) and issued a cashier’s check at his own house. Defendant A was given a loan of KRW 150 million at a financial institution on October 18, 201, but did not notify the victim thereof.

D) On the other hand, around July 14, 2015, Defendant B delivered L with a receipt to the effect that “the above amount (265 million won) is KRW 1 billion to L (M representative) and Defendant B borrowed KRW 1 billion to L (M representative) on September 2013 and Defendant B repaid KRW 300 million to be the responsibility for the guarantee” (hereinafter “the instant receipt”), and signed and sealed by L.

C. Whether the Defendants borrowed the instant loan in consideration of the acquisition cost of the listed company

In full view of the following circumstances that can be recognized by the evidence duly adopted and investigated by the court in the above facts, the fact that the Defendants, even though there was no plan to accept the listed company on September 25, 2013, was false as if the Defendants were to use the borrowed amount as the acquisition cost of the listed company.

1) On September 25, 2013, the victim stated that the police, the prosecution, and the court consistently held that the Defendants lent KRW 1 billion to the effect that the Defendants would be able to use the funds as the acquisition cost of listed companies by finding the victim’s house on September 25, 2013 (However, the victim’s complaint does not state that the Defendants would be able to use the funds in question as the acquisition cost of listed companies).

2) Around September 25, 2013, L, which introduced the victim to the Defendants and was present with the Defendants on September 25, 2013, also stated that the investigation agency, under the investigation of the Defendants and the victims, the Defendants told that the Defendants would use them for taking over the listed company (in the investigation record 278 pages). In this court, the Defendants expressed that the Defendants would have received funds to take over the listed company around that time, and that Defendant A was a financial company located in the United States. The Defendants did not directly listen to the fact that the Defendants would take over the listed company at the victim’s home on September 25, 2013, but the Defendants did not directly listen to the fact that the Defendants were said to the effect that the Defendants were said through the victim (LL3, 4 pages).

3) Defendant A stated at the investigative agency that he did not notify the victim of the actual purpose of the instant loan in accordance with L’s instructions (the Investigation Record 857 pages). However, in the event that the victim received the repayment of KRW 300 million prior to the loan to the Defendants and returned the instant contract for the sale of the building, which was offered as security by Defendant A. On September 25, 2013, Defendant A intended to provide the business rights or the right to U buildings through L as security, but the victim did not receive it as security on the ground that there was no value of collateral. The victim appears to have many experience in lending and borrowing money as a bond business operator. However, it is an example to say that the victim borrowed a large amount of money of KRW 1 billion without asking the purpose of the loan, even if the victim did not receive any collateral except for the instant deposit, it is difficult to say that the victim lent the Defendants with the loan of KRW 300 million.

D. Whether Defendant B is the joint obligor of the instant loan

In full view of the following circumstances that can be recognized by the evidence duly admitted and investigated by this court in the above facts, Defendant B and the victim’s house on September 25, 2013 can be recognized as jointly borrowed KRW 1 billion from the victim.

1) On September 25, 2013, L, the victim, and the defendant A make a statement with the agreement that they were present at the time when they borrowed KRW 1 billion from the victim’s office. In particular, L does not seem to have any special motive or reason to make a false statement of unfavorable facts against the defendant B.

2) The loan certificate and promissory note, prepared at the time of borrowing the instant loan money, all of the Defendant B’s own name and signature were written as Defendant B’s joint debtor (the Promissory note of this case was signed by Defendant B). Defendant B merely demanded Defendant A to write his name in blank and blank promissory note as it is necessary to cancel the registration of a P In-house director, etc., and requested Defendant A to write his name in blank and to affix his signature and seal thereto, and Defendant A voluntarily filled out blank. However, Defendant B’s signature in blank is ordinarily difficult to obtain, even if the listed company’s representative director was not used for any purpose. The demand for signature in blank promissory note on the ground of cancellation of the registration of P in-house director was in exceptional form based on the empirical rule, and thus, it is reasonable to view that Defendant B, even with knowledge of the contents of the P in-house loan certificate and promissory note, signed by himself.

3) If Defendant B decided to provide a guarantee only for KRW 300 million out of the borrowed amount of KRW 1 billion, it is natural to state the same purport on the borrowed amount and to clarify the scope of liability therefor. In addition, Defendant B asserted that, around October 2014, Defendant B discussed to limit the scope of liability of Defendant B by gathering the Defendants, L, and the victim to KRW 300 million. However, even if such agreement was reached, it is merely an ex post facto circumstance, and it cannot be deemed that Defendant B provided a guarantee only for KRW 300 million out of the borrowed amount. From the beginning, Defendant B paid KRW 265 million to L on July 16, 2015, and received the receipt of KRW 265 million from L to the point of view of the fact that Defendant B did not have any signature and seal on the receipt of this case, and the victim did not have any legal interest in the document of this case at the time of the borrowing and delivery of the receipt of this case.

4) On September 26, 2013, Defendant B made a statement to the effect that the Defendants borrowed KRW 1 billion from the victim in dialogue with Defendant A, while speaking to the effect that Defendant A may continue to obtain a loan of KRW 1 billion from the victim, and rather, Defendant A could continue to obtain a loan of KRW 1 billion from the victim (written evidence No. 83-1 of the evidence submitted by Defendant A) and the investigative agency also held that Defendant A was liable for a loan of KRW 300 million for the purpose of the travel fund, etc. prior to borrowing the above KRW 1 billion, and thus, Defendant B was also aware that he/she used KRW 300,000 out of the above KRW 1 billion for the purpose of his/her repayment (the investigation record No. 849 of the investigation record).

E. The Defendants’ intentional act and deception

In light of the aforementioned facts and the following circumstances, the Defendants did not plan to accept the listed company at the time, and instead, the Defendants were planned to use the instant loan to pay the existing debt, as if they were to use the borrowed money for the acquisition cost of listed companies. Defendant A did not notify the victim of the fact that the borrowed money was already borrowed KRW 150 million as security, and Defendant A could not repay the borrowed money even if it borrowed KRW 1 billion from the victim due to the failure to facilitate the progress of the business. At least, it is reasonable to deem that the Defendants received KRW 1 billion from the victim by deceiving the victim as if the Defendants did not have any intention or ability to repay the borrowed money, and by deceiving the victim as if he had any intention or ability to repay the borrowed money.

1) The Defendant’s security for the instant deposit is only the deposit for the lease on a deposit basis. The part concerning the security value of the deposit for the lease on a deposit basis for determining whether to lend the loan on a deposit basis. It is reasonable to deem that the Defendant’s failure to notify the fact that the deposit for the lease on a deposit on a deposit basis was granted a loan of KRW 150 million with the security of the loan on a deposit on a deposit basis constitutes deception as any passive act that lacks good faith and good faith that should be observed in property transaction, and thus, constitutes deception.

2) In addition, even though the Defendants intended to use the instant loan funds for the existing debt repayment of L and Defendant B, they made a false statement as if they were to be used for the acquisition of listed companies. The victim was aware of the actual intent of the Defendants, and the victim stated that he would not lend KRW 1 billion to the Defendants if he knew of the aforementioned circumstances (the six pages of the record of the examination of the witness of M).

3) As seen earlier, in the case of zero projects, loans to prepare the purchase price of the instant land amounting to approximately KRW 5 billion, and interest on the loans amounting to KRW 50 million per month, as well as KRW 20 million per month due to office operation expenses, etc. (in the case of KRW 863 pages of investigation records).

In addition, approximately KRW 1.7 billion was already consumed as the cost to resolve the lien of the construction company, etc., and KRW 2.0 billion was already the construction cost of the building ( KRW 9 pages of the record of Defendant A’s legal statement). The amount of the construction cost of the building was at least KRW 7.0 billion. However, P had not been able to repay the construction cost by receiving an intermediate payment credit loan of KRW 1.78 million as of March 2013 and appropriating the construction cost. In addition, P was selected as a new construction company around September 2013. However, Y was treated as a failure to start the construction of the building, and in fact, it was difficult to expect the appraisal rate of the building as of May 20, 2014 as of the expiration date of the loan of this case from the expiration date of the loan of this case until the expiration date of the loan of this case until the expiration date of the loan of this case 4.5% and the end of the loan of this case until the expiration date of the loan of this case.

4) Meanwhile, around February 2014, P entered into the instant transfer and takeover contract with AB operated by AA and the transfer and takeover price of KRW 1.8 billion. However, AA, as if he did not intend to transfer the right to the instant transfer, was punished for committing the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) by deceiving a third party with the intention to transfer the right to the instant transfer and takeover of KRW 1.57 million as the transfer price and KRW 270 million as the construction price from a third party. Considering such circumstances, it is difficult to view the value of the instant transfer and takeover contract as being fairly assessed.

5) On December 6, 2012, Defendant A made a false statement to the effect that Defendant A would transfer 30 million won of P share to the victim if he/she additionally invests 300 million won in the 0 business to the victim even though he/she did not have the intent or ability to transfer the P share to the victim AE, and Defendant A received a total of KRW 320 million from the victim to January 20, 2013 as an investment deposit and received a total of KRW 320 million from the victim during the period from December 18, 2012 to January 20, 2013, and was punished by imprisonment with prison labor for one year and a suspended execution for two years on August 13, 2015. It is difficult to find that there is a significant difference between the date of the crime and the date of the crime in this case and the date of the crime in this case.

6) The loan amount of this case is large to KRW 1 billion in principal and interest amount, and KRW 40 million in each month. However, in the case of Defendant A, not only U building under the name of the mother T, but also in the name of Jongno-gu Seoul AF but also one of the two above-ground condominiums in the name of the company AH in Eunpyeong-gu Seoul and the name of the company AG. However, U building was subject to provisional attachment of KRW 910 million in the name of the AI association and the claim amount of KRW 95 million in the name of the creditor AJ, respectively, and there was approximately KRW 1.4 billion in the lease deposit amount (No. 14 of the record of Defendant’s newspaper). In the case of other three aggregate buildings, it seems that there was no substantial collateral value. In light of the purport that Defendant AK’s representative director at the time of Defendant B’s borrowing, it is difficult to view that there was no evidence suggesting that there was no real collateral value of the loan amount in the name of the owner of the present case.

Reasons for sentencing

1. Defendant A

(a) Scope of applicable sentences under law: Imprisonment for one year and six months to fifteen years; and

B. The reference sentencing guidelines for the crime is the relation between fraud on the records of crime and concurrent crimes in the latter part of Article 37 of the Criminal Code, and thus, the sentencing guidelines for the crime are not applicable, but the reference to the following sentencing guidelines is given.

[Determination of Punishment] General Fraud. Type 3 (at least 500 million won, less than 5 billion won)

[Special Doctrines] Reductions: Cases where a person commits a deceptive act with dolusent intent, or cases where the degree of the deceptive act is weak.

[Scope of Recommendation] Reduction Area, one year and six months of imprisonment to four years

The following circumstances and the defendant's age, character and conduct, environment, motive, means and result of the crime, and various factors of sentencing as shown in the argument of this case, such as the circumstances after the crime, shall be determined as ordered in comprehensive consideration.

○○ Unfavorable Circumstances: The instant crime did not properly notify the Defendant of the fact that the Defendant borrowed money from the victim to acquire money from the victim without any intention or ability to repay the borrowed money in a normal manner, and the crime is not less than the nature of the crime in light of the amount of fraud, etc. Nevertheless, the Defendant consistently denies the instant crime, and denies the instant crime, and did not endeavor to recover the repayment of the borrowed money and the damage, except that the Defendant paid approximately KRW 500 million interest to the L who is the victim’s agent, and the victim is a strong punishment against the Defendant.

The circumstances favorable to ○: (a) the Defendant appears to have committed the instant crime intentionally with negligence due to the circumstances such as pressure to repay debts from L, etc. The Defendant had no record of criminal punishment heavier than imprisonment with prison labor prior to the instant case. Since the instant crime is in the concurrent relationship between the crime of fraud recorded in the criminal records stated in the judgment that became final and conclusive and the crime of this case under the latter part of Article 37 of the Criminal Act, equity is to be taken into account

2. Defendant B

(a) Scope of applicable sentences under law: Imprisonment for one year and six months to fifteen years; and

(b) Scope of recommendations based on the sentencing criteria;

[Determination of Punishment] General Fraud. Type 3 (at least 500 million won, less than 5 billion won)

[Special Doctrines] Reductions: Cases where a person commits a deceptive act with dolusent intent, or cases where the degree of the deceptive act is weak.

[Scope of Recommendation] Reduction Area, one year and six months of imprisonment to four years

The crime of this case was committed by acquiring money from the victim without intent or ability to repay the borrowed money normally, and the crime of this case is not less than the nature of the crime in light of the amount of the defraudation. Nevertheless, the defendant is consistent with the defense and denies the crime of this case. The victim is a strong punishment against the defendant.

The Defendant appears to have committed the instant crime intentionally due to pressure on repayment of excessive interest. The Defendant used only a part of the instant loan funds, and paid a part of the principal to the victim.