현저하게 고율로 정해진 이자약정의 효력 및 임의로 지급된 초과이자의 반환청구권 대상판결 : 대법원 2007. 2. 15. 선고, 2004다50426 전원합의체 판결

Abstract

The purpose of this paper is to examine the case which confirmed the invalidation of high rate of agreed interest and repayment claim of excessive interest. The importance of this case lies in the fact that the court, unlike previous cases, recognized the repayment claim in the excess interest already payed, which had been under controversy since the abrogation of the old Usury Law. This case is problematic, However, because the court did not make clear the criteria and extent of the high interest rate that could be invalidated as a violation of Article 103 of Korean Civil Code. The redemption claim of the excessive interest already payed was settled by the principle of fairness and repayment in good faith, based on the comparison with Article 746 of Korean Civil Code. Since the court didi not follow the precedents, it should have presented the theoretical ground and meaning of unlawfulness. Despite this limit, this case is still important in that the court initiated the legislation on issues under controversy, resulting in the restoration of the Usury Law. For this reason, the new Usury Law was established in 2007 and the law took effect on June, 30, 2007. At this point, the issues on the validity of agreement on high interest rates and repayment claim of excessive interest will be settled under the new Usury Law.