미국의 이자제한법과 우리에의 시사점

• 영문명: The Lessons from the U.S. Usury Law
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 윤부찬(Bu-Chan Yoon)
• 간행물 정보: 『비교사법』比較私法 제13권 제3호, 251~295쪽, 전체 45쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.09.01

영문 초록

  The purpose of this paper is to examine the need of usury law in Korea. In 1962, Korea enacted the first usury statute to limit the rate of interest to twenty percent per annum. In 1965, the revised ceiling of the interest rate is provided by the Presidential Decree within not more than forty percent. The ceiling of interests rate provided by the Presidential Decree was varied from 36.5% in 1965, 25% in 1972 and 1980, to 40% in 1980 and 1997.
  Late 1997, Korea experienced exchange crisis. And The International Monetary Fund (hereinafter IMF) approved an economic rescue package and relief loan to Korea. Conditionalities of the IMF relief loan included the far-reaching reform of the financial sectors, the liberalisation of trade and capital flows as well as the improvement in the structure of business corporations. The Korea Legislature repealed the usury law not because of the economic arguments against usury laws but because of a part of the fulfillment of IMF demands for liberalisation of trade and capital.
  After its abrogation, there are several principles to rule exorbitant interests in Korea. Korea Civil Code Art. 104 provides that a juristic act which has conspicuously lost fairness through strained circumstances, rashness, or inexperience of the parties shall be null and void. Relying on this, the loan contracts containing unjust interest rate can be nullfied. However, it must be very strict to nullify the loan which includes an agreement to receive unjust interest rates. So it does not effectively control unresonable profits on private loan business and money-lending business.
  To register and control private loan business, the Korea Assembly passed the Act on the Registration of Private Loan Company & Protection of Financial Users, in 2002. But, Its high ceiling of the interest rate is 66% per anuum. So it is too high to protect consumers.
  In the light of comparative law between the United States and Korea, this piece suggests that far more strict and resonable usury law be provided for Korea.
  In general, the economic arguments against usury laws stress that (1) credit markets are competitive, (2) the costs of usury laws in terms of efficiency and social losses outweigh some beneficial effects, and (3) the high ceiling of usury law which is lower than the market rate of interest actually inhibit the economic growth. These arguments rely on the basis that credit markets are competitive and that market price be decided at a equilibrium price by the function of demands and supports. However, the Korean credit markets are non-competitive, in private lending business as compared to the United States. So this article argues that usury laws are indispensable to protect borrowers from creditors who charge the rate of interests in the private lending business higher than that of interests in the national market.
  In the remaking of the usury law in Korea, this paper concludes as follows; First, in order to maintain or facilitate competition and liberalization of credit market such as the Arkansas usury law and the Delaware usury law, the flexible interest rate meaning connection between the high ceiling of interest rate and certain indexes is more effective than fixed interest rates.
  Second, in order to protect borrowers, the penalty for usury activities is not so much merely forfeiture of interest in excess the legal rate, but forfeiture of all interest being contracted, charged, or received.
  Finally, usury laws should protect unknowledgeable credit consumers or borrowers who have no bargaining power, while it shall not equally treat corporations as individuals.

목차

Ⅰ. 이자제한에 관한 우리나라의 현황
Ⅱ. 미국에서의 이자제한
Ⅲ. 미국에서 이자제한 제도의 존폐론
Ⅳ. 우리법에의 시사점과 입법의 방향
[참고문헌]
【ABSTRACT】

키워드

이자 이자제한 이자제한법 고리금지 고리금지법 대부업 대부업법 금융이용자보호법 사채규제 usury usury law interest rate money lending business