간주이자 규제에 관한 법제사적 고찰

Abstract

The traditional regulation on the total amount of interest can be said to be the principle that interest does not exceed the original. This was stipulated in the Korean Empire's 'Interests Regulations, a modern law on interest restrictions in the early 20th century. The Interests Regulation focused on suppressing the total amount of interest while setting the maximum interest rate, but did not stipulate 'Deemed Interest'. This was because there were no customs such as various fees, loan deposits, or pre-interest deduction in Korean Empire. Practices such as various fees, loan deposits, or deduction of pre-deductible interest appeared in Jo-seon after the signing of the ‘Korea-Japan Trade and Market Open Treaty in 1876, when Korea's ordinary sovereignty was damaged. As lenders, along with Japanese banks such as Cheil Bank, entered Joseon, they carried out special Japanese customs regarding the payment business regarding benefit time, fixed interest rate and methods of storing pawnbrokers. In addition, as credit allocation was carried out against the backdrop of Meiji inflation, excess demand was severe, and loan practices such as deposits, discounts, fees, deductions and overdue interest were created and transplanted into Jo-seon. In particular, the practice of receiving various fees, as well as deposits, substitute payments, and pre-interest payments, combined with external conditions of the use of Japanese currency and control of the financial system, stood out against Korean debtors. Along with the transplantation of the Japanese style godfathering practice, the regulation of deemed interest was transplanted by the japanese colonial ‘Interests Regulation’ 1911, which replaced the transplant rule as the Governor-General's Office. However, the regulation of deemed interest remains the same even today, when it is difficult to feel extreme inflation or credit allocation during the Meiji period or after the Korean War as the years go by. In the preface of the Joseon Dynasty's "Daejeon Sokrok," he said, "If the law is long, it will be a waste, so it is time to open and close the law, but if it is not changed, it will be like a ‘hard and fast rules(膠柱鼓瑟), so how can it be admired?" In Japan, where the deemed interest regulation was transplanted, there have been disadvantages that limit the fee-based business model, and the exceptions are expanding. As the economic and social background of the deemed interest regulation has changed, we should also seek a modification to prevent ‘hard and fast rules’.