간주이자 규제에 관한 비교법적 연구

This study aims to examine the problems of the deemed interest regulation stipulated in Article 8 (2) of the 「Act On Registration Of Credit Business And Protection Of Finance Users(Credit Business Act as follows)」. In Article 8, Paragraph 2 of the Credit Business Act, the following transaction costs are deemed as interest. “In determining the interest rate prescribed in paragraph (1), all payments made to a credit service provider in connection with a loan, in whatsoever name it is referred to, such as a recompense, a rebate, a fee, a deductible amount, overdue interests, or a substitute payment, shall be deemed interest: Provided, That the foregoing shall not apply to expenses specified by Presidential Decree as those incidental to the conclusion of the relevant transaction and repayment.” The Credit Business Act deem “everything received by a lender regardless of its name” as interest. This comprehensive definition of interest allows the category of interest to be expanded indefinitely regardless of the conceptual characteristics of interest. As a result, arbitrary supervision and judicial judgment on whether the highest interest rate is violated are possible. Logically it makes conflict with the 'principle of prohibition of excess' under the constitution. Emerging financial operations based on fees, such as 'P2P loans' and 'Transaction Banking', are also bound to be restricted by the highest interest rate regulations. Therefore this study analyze the conceptual problems implied by 'deemed interest', not interest in a unique sense under the Credit Business Act. Subsequently, other countries that implement the legal interest rate cap under the Credit Business Act would be examined how to set the scope of their application by comparing them with the deemed interest regulations under the Korean Credit Business Act. Finally, it would be presented ideas to solve problems arising from the current deemed interest regulations.