일본의 폭리적 금전소비대차계약에 관한 대응 - 2008. 6. 10.자 최고재판소 판결을 중심으로 -

After so called 'IMF financial crisis' drove Korea to abolish her long cherished 'Interest Rates Restrictions Law(IRRL)’ for the purpose of inducing the inflow of foreign capital,high loan-interest could be charged without limit for nearly 10 years in Korea. In the meantime,speculative foreign capital came pouring into the domestic financial market, a lot of enterprises and individuals went bankrupt under the high interest burden. Most Koreans thought they belong to the middle class before the financial crisis, who were the strong supporters of our proud democratic society, but have lost jobs or meal tickets, to become the poor strata, under the influence of the economic downturn and high loan-interest since the IMF crisis. From Jan. 1. 1998 to Jun. 29. 2007, we didn’t have effective measures for restrictions on interest rates, and there was no evolutive judicial ruling on the issue because we had no laws equal to IRRL. Now the enforcement of new IRRL 2007 urges us to renew discussions on interest restrictions. Therefore it will be useful for our future law-making and judgment of the court, to see how Japanese authorities have taken measures against loan sharking. Our topics here are expansive review on the decision of Jun. 10. 2008. Supreme Court of Japan,which is under full discussion even in Japan. The major contents of the ruling is that, in a tort suit filed by a borrower arguing that a moneylender committed an illegal action by lending money at markedly high interest, the money offered by a lender to a debtor(especially the principal) should not be deducted from damages by using the legal principal ‘offset of profits and losses’. This decision is highly praised that the court took due and sure action to protect debtors in bad need for fast cash, to whom usurers lend funds at an exorbitant rate of interest, and collect their debts by illegal and hard-fisted means in a short period of time. In addition, this decision is considered to have taken unprecedented special measures which excluded ‘offset of profits and losses’ in torts, on the ground of ‘payment for unlawful services’principle, to protect debtors. And this ruling is continuing to take the traditional position that the purpose of actio ex delicto(torts action) lies in the compensation for the loss, on the other hand,implies the possibilities of introducing civil sanction system of damages, especially punitive damages. Restrictions on interest rates have been strengthened on petty loans for the working classes in Japan. The Japanese case study will be a good guide to solve the loan sharking problem in Korea,where the gap between the rich and the poor has become one of the most serious social problems.