대여와 투자의 구별에 관한 법적 고찰

In Korea, there have been lots of legal disputes regarding a financial transaction where one party argues that the transaction transpired under a loan agreement, and the other party argues that it transpired under an investment agreement. Among the disputes were (i) the case where the plaintiff seeks return of the principal whereas the defendant denies to return the money under the logic that the plaintiff was meant to take the loss; (ii) the case with regard to the application of Interest Limitation Act; and (iii) the criminal case that the court should determine whether the recipient of the money committed fraud or not. In those cases, although many courts tried to provide the legal standard distinguishing the loan agreement from the investment agreement, it is hard to say those attempts were successful on the whole. The standards offered by the courts are too vague and inconsistent, and they often run counter to the definition of the “loan” or “investment” stipulated in written laws. In order to secure fairness, consistency, and legal certainty in this field, Korean courts needs to make a change on the method dealing with these kind of cases. First of all, the courts need to adopt a unified standard in distinguishing an investment from a loan. Whether the creditor agreed to take a risk of loss should be the legal standard when considering the content of the relevant written laws. Second, in order to confirm the fact on whether the creditor took the risk, the court can consider several factors, such as the expenditure of the money; the name under which the money was expended; transactional pattern between the parties; whether the transaction is secured; the conversation between the parties after the agreement was sealed; or whether the creditor’s profit is subject to change depending on the debtor’s performance. Lastly, courts also need to actively ask the party who argues that the transaction in question is an investment to explain the specific deal structure of the contract and to submit corroborating material. The said party’s response to the request of the court can also be used as an important factor when the court has to define the legal characteristic of the transaction.