「채권의 공정한 추심에 관한 법률」의 비교법적 고찰과 개선방안

Abstract

It is now seven years since the 「Fair Debt Collection Practices Act」 was enacted in 2009. It has been amended twice in 2014 in response to demand to protect consumer. Even thought it is modelled on the American law(「Fair Debt Collection Practices Act」, ‘FDCPA’), the Act has something differences from the American FDCPA and the similar Japanese law regulating debt collecting(「Money Lending Business Act」 and 「Act on Special Measures Concerning Claim Management and Collection Businesses」) in terms of persons, transactions and collecting practices covered by the law. Exploring the American FDCPA and the Japanese code, the article analyses 「Fair Debt Collection Practices Act」 with comparative perspective and suggests the improvement plan of it as follows. First, the Act covers all creditors of monetary loans, using the term of ‘debt collector’ including ‘a creditor of a monetary loan.’ This article, pointing this concept of debt collector is too broad, suggests reform on this term: the creditor who ‘regularly’ lends money or collects debts, or ‘on business’ should be covered by the act rather than all creditors. The constructive way to improve the act’s enforcement system may narrow the scope of the act’s coverage and strictly deter debt collectors from abusing their rights or using unlawful methods in debt collection. Second, to protect of privacy and peace in business of debtors. paying visits and communications at night time without any justifiable reason should be prohibited, regardless of ‘seriously disturbing privacy or peace in business (…) to arouse fear or apprehension,’ Third, the Act prohibits against contact with debtor in cases of appointing Agent, with broad exclusions from the covered persons. This article suggests this regulation provision should generally apply to the creditor who ‘regularly’ lends money or collects debts, or ‘on business.’ ; The exclusions from this provision should be reformed narrowly. This article also points the necessity to redesign the remedial provisions of the act to serve the purposes to protect consumers from collection misconduct and resulting injuries.