Defendant

Defendant

Lee Nam-soo

Seoul Southern District Court Decision 2009 High Court Decision 2275 Decided November 26, 2009

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

The provisional payment of the amount equivalent to the above fine shall be ordered.

Of the facts charged in this case, it is not guilty that the Credit Business Act was in violation of the Act on the Registration of Credit Business and the Protection of Financial Users, which received more restrictive interest rates than the loan act of December 15, 2008.

1. Summary of grounds for appeal;

(a) The point of receipt in excess of each limited interest rate;

Although the Defendant did not receive interest exceeding 49% per annum from Nonindicted Party 1 (the Nonindicted Party in the judgment of the Supreme Court), the lower court found the Defendant guilty of each of the facts charged, which erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

(b) Illegal collection;

Notwithstanding the fact that the Defendant, a joint and several surety of Nonindicted Party 1, requested repayment of debt to Nonindicted Party 2, and did not intimidation Nonindicted Party 2, the lower court found the Defendant guilty of this part of the facts charged, which affected the conclusion of the judgment by misunderstanding the facts.

2. Determination

A. The point of exceeding the interest rate

1) Article 8 of the former Act on Registration of Credit Business and Protection of Finance Users (amended by Act No. 9344, Jan. 21, 2009; Act No. 9344, Apr. 22, 2009; Act on Registration of Credit Business, etc. and Protection of Finance Users amended; Act No. 934, Apr. 22, 2009); where a credit service provider grants a loan to an individual, the interest rate shall not exceed the rate prescribed by Presidential Decree within the limit of 60/100 per annum (Article 5(3) of the Enforcement Decree of the same Act; 49/100 per annum shall be converted into the interest rate; 49/100 per annum shall be converted into the interest rate); where a credit service provider receives a loan in relation to its name, such as honorarium, discount, fee, mutual aid, interest in advance, interest in advance, etc., in violation of Article 11(2) and Article 19(2)2(9)4 of the same Decree, the interest rate shall be imposed on a person subject to 90.

2) Loans made on October 1, 2008

Comprehensively taking account of the evidence duly adopted and examined by the court below, 9.7 million won was paid after the defendant lent 10 million won to the non-indicted 1 on October 1, 2008, agreed to receive the principal and interest in installments 1.2 million won a day between 100 days and 1.3 million won a day, deducting 300,000 won from the fees. It is clear that the above former Act on Registration of Credit Business and Protection of Finance Users has interest as interest) 300,000 won on the day of loan from the non-indicted 1 (the above Act provides that interest shall be deemed as interest), the principal amount shall be 120,00 won on June 1 of the same month, 7 of the same month, 120,000 won on August 6, 2008 to December 14, 2008, and the fact that the defendant received 400,000 won a total of 30,000 won payment from the defendant's financial appropriation statement.

If so, the interest of the above 6,240,00 won among the above 6,240,000 won = 51% per annum (=1,240,000 won x 2 million won x 1,000 won (120,000 won x 100 days) - 1,00,000 won (the interest may be appropriated for the principal of the interest exceeding the interest rate on civil affairs) - although the above former Act on Registration of Credit Business and Protection of Finance Users considers the interest as the interest, it is evident that the above former Act on Registration of Credit Business and Protection of Finance Users has the interest as the interest, and therefore it is clear that the principal is 1,00,000 won)/12 million won] of the principal amount as 1,00,000 won per annum (i.e., 1,040,000 won x 1,000 won x 365/700 x 1,00) of the above interest rate per annum.

Therefore, this part of the defendant's assertion of mistake is without merit.

3) Loans made on December 15, 2008

A) Summary of this part of the facts charged

On December 15, 2008, the Defendant, upon receiving an application for additional loans from Nonindicted 1, 200,000 won of the nominal principal (4.5 million won + 5 million won of the outstanding principal and interest on the previous loan + 7,000 won of the actual payment) from Gangseo-gu Seoul Metropolitan Government Do 14,40,00 won each time on December 15, 100, subject to repayment of KRW 14,40,00 won for 1.5 million each time on December 15, 200, and 7,00,000 won in total as principal, such as KRW 2,00,000,000,000,000 in substance after this framework, was given in the number of days, and received KRW 14,440,000 per annum 136.2% per annum.

B) The judgment of the court below

The lower court found the Defendant guilty of this part of the facts charged, based on the Defendant’s partial statement in court, the police statement on Nonindicted 1 and 2, the details of transactions, and the investigation report (the calculation of the number of days interest rate

C) Determination of the immediate deliberation

(1) In order to punish a credit service provider in violation of the restriction on interest rates under the former Act on Registration of Credit Business and Protection of Finance Users (amended by Act No. 9344, Jan. 21, 2009; Act No. 9344, Apr. 22, 2009; hereinafter the same shall apply), it is insufficient to conclude a loan agreement alone, and it is insufficient to say that only if interest is paid in excess of the restricted interest rate, it can be punished by the fixed amount only (the act of concluding a contract alone may constitute an attempted crime, but the above Act does not provide a penal provision on attempted crimes).

(2) Confirmation of principal amount of loans made on December 15, 2008

(A) Whether the remainder of October 1, 2008 includes the principal and interest of the loan.

Comprehensively taking account of the evidence duly admitted and examined by the court below, the defendant and non-indicted 1 were paid KRW 7 million on December 15, 2008 and agreed to view the nominal principal amount of KRW 12 million including the outstanding principal and interest of KRW 4.5 million on October 1, 2008, and fees KRW 500,000. The following circumstances revealed by the above recognition, namely, the defendant and non-indicted 1 calculated the remaining principal and interest of the loan as of December 15, 2008 and included them in the loan principal and interest amount of KRW 1.25 million on December 15, 2008, or included the loan principal and interest of KRW 1.5 million on October 28, 208 in the agreement between the defendant and non-indicted 1 and the loan principal and interest of KRW 1.5 million on October 15, 2008. On that day, the above defendant received KRW 120,000 on October 28, 2008.

(B) The remaining amount of principal and interest of the loan as of October 1, 2008

As seen earlier, the Defendant and Nonindicted Party 1 determined the remaining principal and interest of the loan as of December 15, 2008 as KRW 4.5 million. However, it is reasonable to deem that the agreement on interest exceeding the interest rate under the Interest Limitation Act is null and void. As of December 15, 2008, the remaining principal and interest of the loan as of October 1, 2008 should be deemed as being appropriated under the Interest Limitation Act.

As seen earlier, as from October 1, 2008 to December 15, 2008, the Defendant received a total of KRW 5,940,000 from Nonindicted Party 1 (the Interest Limitation Act does not regard the fee as interest differently from the registration of the above credit business and the Act on the Protection of Finance Users, and its detailed payment details are as seen earlier). The above payment amount of KRW 5,940,000 as 5,940 per each payment day shall be appropriated first to the interest rate of KRW 40% per year in effect pursuant to the Interest Limitation Act and Article 1(1) of the Interest Limitation Act, and the remainder shall be appropriated to the principal amount of KRW 9,70,00 (the Interest Limitation Act shall cover the interest on the principal) in the order of KRW 970,00 (the Interest Limitation Act shall cover the interest on the principal). The remainder of the loan principal and interest on October 1, 2008 shall be as stated in [Attachment No. 40] 400,405 column 96.

(C) Ultimately, the principal of the loan as of December 15, 2008 is 11,96,105 won (=4,496,105 won + 7,000 won + 7,000,000 won + 50,000 won) with the actual payment of KRW 7,00,000,000 as of October 1, 208, plus the actual payment of KRW 4,496,105.

(3) Whether the interest rate exceeds the limited interest rate

According to the above facts and records, the defendant extended a loan of KRW 1,96,105 on December 15, 2008, and agreed to receive KRW 144,000 per day for 100 days, and he received KRW 500,000 per day from the non-indicted 1 side on December 15, 2008, KRW 120,000 on December 16, 16, 2008, and KRW 280,000 on December 24, 2008, including KRW 16,20,000 on December 16, 2008 through March 24, 209 (this is recognized based on the defendant's assertion and statement of transactions). In this case, the fact that the principal and interest have not been paid in installments, and the principal and interest have not been paid in installments, can be acknowledged.

Thus, the interest rate of the above 6.28 million won is about 31% per annum (=1,048,365 won x 6,280,00 won x 2,403,895 won (=14,40,00 won - 11,96,105 won) ± 14,96,100 won) ± (14,996,105 won) x 31% per annum (=1,048,365 won/11,96,105 won x 365/100 x 100).

The interest rate shall not be exceeded.

(3) Therefore, the facts charged in this part of the facts charged shall be pronounced not guilty pursuant to Article 325 of the Criminal Procedure Act because it does not constitute a crime or there is no proof of facts charged. The judgment below which found the guilty guilty of this part of the facts charged is erroneous by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion

(b) Illegal collection;

Intimidation refers to the threat of harm and injury sufficient to restrict the freedom of decision-making or interfere with the freedom of decision-making, and the realization of harm and injury so notified in this context does not necessarily require that it is unlawful, and the threat is used as a means of realizing the right, and even if it is used as a means of realizing the right, it is a crime if the means of exercising the right exceeds the permissible level or scope under the social norms.

In light of the legal principles as seen earlier and the content thereof, text messages, etc. sent by the Defendant to Nonindicted 2 are objectively deemed to have exceeded the degree that it is difficult to be accepted by social norms, and thus, constitutes a threat of harm and injury sufficient to cause fear to the public. This is deemed to exceed the scope of means reasonable by social norms. Thus, this part of the Defendant’s assertion is without merit.

3. Conclusion

Therefore, although the appeal by the defendant is justified within the above recognition scope, the judgment of the court below is erroneous in finding the defendant guilty of violating the Act on Registration of Credit Business and Protection of Finance Users due to excess interest rates and violation of the Act on the Protection of Finance Users, and thus, the judgment of the court below cannot be exempted from the whole reversal. Thus, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

The summary of the facts constituting the crime and the evidence acknowledged by this court is as follows, except for the change of Paragraph (1) of the facts constituting the crime in the judgment of the court below and deletion of "1. Investigation Report (in the calculation of the interest rate for the number of days)" among the summary of the evidence, as stated in each corresponding column of the judgment of the court below.

1.No credit business shall be conducted without being registered with the authorities, and unregistered credit service providers shall not receive interest exceeding the limited interest rate.

A. Although the Defendant did not register a credit business, on October 1, 2008, at the “△△△△” coffee shop located at ○○○○○○○○○○○○m on the Yandong on the basis of a written confirmation from Nonindicted Party 1’s children Nonindicted Party 2, who participated therein, and one hundred and twenty thousand won of the principal and interest on the one-time repayment for 120,000 Do 12,000 Do 12,000 Do 10,000 Do 10,000 Do 3,00 Do 3,00 Do 3,00 Do 15,00 Do 1,50,000 Do 15,000 Do 1,50,000 Do 2,000 Do 1,500,000 Do 15,000 Do 2,000.

B. On October 1, 2008, the Defendant received from Nonindicted Party 1’s children of Nonindicted Party 1 a certificate of guarantee of KRW 10 million for the nominal principal and KRW 120,000,000 for 10 days each, respectively, and received KRW 9,70,000,000 from Nonindicted Party 1, deducting KRW 30,000 from the fee, on condition that he/she shall receive KRW 12,00,000,000 for 10 days each time from October 1, 2008 to December 14, 2008.

1. Article relevant to the facts constituting an offense and the selection of punishment;

The point of granting unregistered credit business: Articles 19(1)1 and 3(generally, the choice of fines) of the former Act on Registration of Credit Business and Protection of Finance Users (amended by Act No. 9344, Jan. 21, 2009)

Limited Interest Rate Excess: Articles 19(2)2, 11, and 8(1) (Selection of Fines) of the former Act on the Registration of Credit Business and Protection of Finance Users (Amended by Act No. 9344, Jan. 21, 2009);

Illegal debt collection: Articles 19(1)4, 11, and 10(1)1 of the former Act on Registration of Credit Business and Protection of Finance Users (amended by Act No. 8700, Dec. 21, 2007); and

The violation of the Electronic Financial Transactions Act: Articles 49(5)1 and 6(3) (Selection of Fine) of the former Electronic Financial Transactions Act (amended by Act No. 9325, Dec. 31, 2008)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Concurrent Punishment for Crimes of Violation of the Registration of Credit Business and Protection of Financial Users Act due to Illegal Debt Collection Whose Criminal Status is Maximum)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

It is so decided as per Disposition for the above reasons.

This part of the facts charged is identical to the above 2. A. 3-A, and as seen in the above 2. A. 3-C., it constitutes a crime or a case where there is no proof of criminal facts, and thus, it is pronounced not guilty pursuant to Article 325 of the Criminal Procedure Act.

[Attachment]

Judges Donman (Presiding Judge) Kim Jong-chuln