민법상 법정이율의 변동제 전환 가능성에 관한 시론

Abstract

The statutory rate regime of the Civil Code has been 5% for a long time as a fixed agent. While maintaining 5%, the market interest rate has changed from ultra high interest rate to ultra low interest rate. This article starts from the awareness that the 5% statutory rate can not reflect the economic situation properly, because the rate is relatively high. When applying statutory interest rates on monetary bonds, it is realistically necessary to shift to a floating rate from the current fixed system in order to properly reflect the value of money. In order to do this, we examined whether to discuss the volatility at the time of introducing the statutory interest rate in the past civil law, and reviewed the statutory rate prescribed manner of the current world. In particular, in Japan, the recent amendment of the Civil Law has shifted to a way of linking with market interest rates. There are cases of taking the form of fluctuations not only in Japan but also in other countries, which gives us a lot of suggestions for us to consider the transition to change. Compared to the statutory interest rate which has been 5% since 1960 and the market interest rate(average interest rates on deposit and loan rates), considering that the maximum gap has exceeded 20%, it can be seen that it has not properly reflected the economic reality. In the current 157 low interest rate trend, criticism that the statutory rate is high is raised, but the larger the amount to be calculated, the greater the significance of the 1% interest rate. As a result, it is reasonable to prescribe the statutory interest rate as a variable in the civil law, and there are some considerations in the process. First, if the volatility is specified, we should consider the criteria for determining the interest rate, the method of calculating it, and the timing of the change. In addition, when there is a shift to a variable system, we need a lot of discussion about Article 397 of the Civil Code stipulating the statutory interest rate as a basis for the calculation of delayed damages, and whether applying statutory rates if a mid-benefit deduction is required in calculating the amount of damages. This paper argues that it is reasonable to convert the statutory interest rate to fluctuation, and examines the issues related to it.