최근 P2P금융업의 제한이자율 초과 관련 판단 시 주요쟁점

Abstract

A recent major inspection issue in the P2P lending industry is whether loans from P2P lending companies exceeded the limited interest rate under the Loan Business Act, and other individual issues have been notified by the Financial Supervisory Service or investigative agencies. This article reviews major issues and institutional improvements and practical precautions following registration under the Online Investment-Linked Finance Business Act during the recent P2P lending industry inspection by the Financial Supervisory Service. This article first considers the structure and business process of the P2P lending industry and describes legal issues surrounding the right to collect principal and interest, a concept unique to the P2P lending industry. It examines academia's perception of the legal nature of principal and interest receivables and its recognition in practice, and discusses that it is appropriate to treat principal and interest receivables as monetary bonds in principle of operation. In relation to the receipt of P2P platform fees and the issue of exceeding the limited interest rate under the Loan Act, an entity shall first examine whether the deemed interest is subject to a pre-interest deduction plan and consider how to determine whether the interest rate is exceeded. Subsequently, the P2P platform fee is subject to the recognition of the P2P lending industry, the judgement of the Financial Supervisory Service and other related agencies, and the case, and the establishment of such a legal judgment. Finally, we look at the issue of Financial Supervisory Service inspections and sanctions for exceeding the interest rate limit under the Loan Business Act in P2P financing. Criteria for determining whether P2P platform fees covered by the Sanctions Review Committee can be viewed as data, whether P2P platform corporations and lenders can be viewed as substantially identical, ③ P2P platform fees can be included in loan interest, and whether there was sufficient administrative guidance. It also reviews practical solutions to issues, such as how to distribute fees or incidental expenses, and how to judge the legal nature of refinancing, in the case of issuing a principal and interest receivable based on a single loan contract. The basis for determining these issues will eventually be the intention of the parties to the contract, and the formal determination of excess of the restricted interest rate, which excludes the parties' intentions and basic principles of justice, should be avoided.