[1] In a case where a person operating a credit business has agreed to receive interest exceeding a limited interest rate while lending money, whether the actual repayment of the interest exceeds a limited interest rate based on the loan principal remaining until the repayment date and the loan period, may be punished pursuant to the former Act on Registration of Credit Business and Protection of Finance Users (affirmative), and whether the same legal principle applies to each interest included in the actual repayment amount (affirmative)

[2] In a case where Defendant who runs credit business was indicted of violating the former Act on Registration of Credit Business and Protection of Finance Users on the ground that he received interest exceeding the limited interest rate due to the payment of the principal and interest in installments after lending the loan to Party A by the day, the case holding that the judgment below erred by misapprehending legal principles on the ground that the total amount of interest repaid from the date of borrowing to the date of the final installment payment is calculated, and that the interest rate calculated on the basis of the total number of days of the first principal and the period does not exceed the limited interest rate

[1] In light of the legislative purpose of the former Act on Registration of Credit Business and Protection of Finance Users (amended by Act No. 9344, Jan. 21, 2009; hereinafter “former Credit Business Act”), Articles 1, 8(1), and 19(2)2 of the former Credit Business Act, and Article 5(3) of the former Enforcement Decree of the Act on Registration of Credit Business and Protection of Finance Users (amended by Presidential Decree No. 2146, Apr. 21, 2009; hereinafter “Enforcement Decree of the Act on Registration of Credit Business, etc. and Protection of Finance Users”), where a person operating a credit business has agreed to receive interest exceeding the limited interest rate under Article 8(1) of the former Credit Business Act (hereinafter “limited interest rate”), and the legal principle should be applied to cases where the interest amount actually received by the person operating a credit business exceeds the restricted interest rate under Article 9(2)1 of the former Credit Business Act, including the loan principal and interest repayment period until repayment of the interest was made.

[2] In a case where Defendant who runs a credit business was indicted of violation of the former Act on Registration of Credit Business and Protection of Finance Users (amended by Act No. 9344 of Jan. 21, 2009 and Act on Registration of Credit Business, etc. and Protection of Finance Users, Act No. 934 of Jan. 21, 2009; hereinafter “former Credit Business Act”), the case holding that the judgment below erred in the misapprehension of the former Credit Business Act on the grounds that Defendant’s interest rate was erroneous in the misapprehension of the former Credit Business Act on the ground that: (a) the amount of interest included in each principal and interest repaid by the Defendant exceeds the interest rate corresponding to the remaining principal and interest rate in the loan period; (b) calculated the total amount of interest repaid from the date of loan to the date of final installment payment; and (c) calculated the interest rate exceeding the interest rate corresponding to the interest rate corresponding to the interest rate in the loan period; and (d) calculated the total amount repaid from the date of loan to the date of the final installment payment; and (d)

[1] Articles 1 (see current Article 1 of the Act on Registration of Credit Business, etc. and Protection of Finance Users) and 8 (1) (see current Article 8 (1) and (5) of the Act on Registration of Credit Business, etc. and Protection of Finance Users) and 19 (2) 2 of the former Enforcement Decree of the Act on Registration of Credit Business, etc. and Protection of Finance Users (see current Article 1 of the Act on Registration of Credit Business, etc. and Protection of Finance Users), Article 5 (3) of the former Enforcement Decree of the Act on Registration of Credit Business, etc. and Protection of Finance Users (see current Article 1 of the Act on Registration of Credit Business, etc. and Protection of Finance Users) (see current Article 8 (2) and (3) of the former Enforcement Decree of the Act on Registration of Credit Business, etc. and Protection of Finance Users (Amended by Presidential Decree No. 21446, Apr. 21, 2009); Article 25 (2) of the former Enforcement Decree of the Act on Registration of Credit Business, etc. and Protection of Finance Users (see current Article 19 (2) of the Act)

Defendant

Defendant and Prosecutor

Seoul Southern District Court Decision 2009No2212 decided May 13, 2010

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

1. Judgment on the defendant's appeal

The defendant filed the appellate brief and briefs after the lapse of the deadline, and there is no indication on the grounds of appeal in the petition of appeal.

2. Prosecutor's grounds of appeal are examined.

A. Article 1 of the former Act on Registration of Credit Business and Protection of Finance Users (amended by Act No. 9344 of Jan. 21, 2009; hereinafter “former Credit Business Act”) provides that “The purpose of this Act is to ensure the sound development of credit business by providing for matters necessary for the registration and supervision of credit business and by regulating illegal debt collection activities and interest rates of credit service providers and credit financial institutions, and to contribute to the protection of finance users and the stabilization of the economic life of the people.” Article 8(1) provides that “Where a credit service provider lends a loan to an individual or a small-scale corporation prescribed by the Presidential Decree, the interest rate shall not exceed the rate prescribed by the Presidential Decree within the scope of 60/100 per annum, and Article 5(3) of the Enforcement Decree of the same Act provides that “The interest rate shall not exceed the rate of interest rate of 9/100 per annum 10/100 per annum,” and Article 8(1) of the same Act provides that “the interest rate shall be converted into the interest rate of 9/10/10/10/10 per annum.”

In light of the legislative purpose, contents, and purport of the former Credit Business Act, in a case where a person operating a credit business has agreed to receive interest exceeding the limited interest rate under Article 8(1) of the former Credit Business Act (hereinafter “limited interest rate”), when lending money, it is reasonable to deem that the principal of the loan remaining until the repayment date and the interest rate calculated on the basis of the loan period exceeds the restricted interest rate under Article 8(1) of the former Credit Business Act, and that if the interest rate calculated on the basis of the loan period exceeds the restricted interest rate, it is a violation of Article 8(1) of the former Credit Business Act and is punished pursuant to Article 19(2)2 of the former Credit Business Act. This legal principle also applies to each interest included in the principal and interest actually repaid.

B. As to the facts charged, the lower court agreed on December 15, 2008 that “the Defendant borrowed 144,400,000 won per 10 days each time to the Nonindicted Party on December 15, 2008, a total of 144,400 won, and received 14,000 won per annum in 21 equal to 136.2% per annum,” the Defendant borrowed 11,96,105 won to the Nonindicted Party on December 15, 200, and instead instead received 14,40,000 won per annum from the Nonindicted Party on December 15, 200 to 36,00 won per annum for 14,96,100 won per annum and 28,000 won per annum for 14,500 won per annum, 16,166,000 won per annum and 29,000 won per annum for 20,000 won per annum.

However, as acknowledged by the court below, if the court below agreed to receive 144,00 won per day including the principal and interest for 100 days with respect to 11,96,105 won of the borrowed principal, the principal shall be reduced at each time of the payment of the principal and interest. Accordingly, if the interest rate is calculated according to the principal and the period of borrowing up to the time of repayment of each interest agreement, it shall be calculated as 136.5% per annum, and the defendant agreed to receive interest exceeding the limited interest rate. In addition, according to the above legal principles, if the defendant calculated the interest rate corresponding to the interest rate corresponding to the borrowed principal and interest rate remaining until the date of the repayment of each interest agreement and the interest rate exceeds the limited interest rate, it shall be determined as violating the former Credit Business Act.

Therefore, the court below found the Defendant not guilty of the facts charged as to the act of lending on December 15, 2008 on the ground that the total amount of interest repaid from the date of borrowing to the date of the final installment repayment and the interest rate calculated based on the total number of days of the initial principal and the relevant period does not exceed the restricted interest rate, without examining whether the interest rate exceeds the restricted interest rate by the principal and interest actually repaid in installments, and there is an error of law by misunderstanding the legal principles as to the calculation of interest rate exceeding the restricted interest rate under the former Credit Business Act, which affected the conclusion

3. Scope of reversal

As above, there exists a ground for reversal of part of the facts charged in the instant case, and the remaining facts charged should be sentenced to one punishment in relation to concurrent crimes under the former part of Article 37 of the Criminal Act. Accordingly, the lower judgment cannot be reversed in its entirety.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)