마이너스 금리에 대한 법적 검토

Abstract

With respect to the negative interest rate phenomenon, this paper examines how to incorporate negative interest rates into the existing legal system, what the legal nature of negative interest rates should be, and examines various legal problems that may arise under the negative interest rate phenomenon. In general, interest has been defined as money or other substitutes paid in proportion to the original amount and the period of use as consideration for the use of money or other substitutes in the Korean law. However, since the existing concept of interest in law is not suitable for interest that does not have the property as a consideration for the use of the original, I suggest that it is necessary to modify the legal concept of interest and classify legal interest into two subgroups: i) the case when it has properties as a consideration for the use of the original and ii) the case when it has the property as an adjustment payment in consideraton of fluctuations in the real value of the original due to changes in the real value of money. It is the existing mainstream opinion that it is reasonable to accept the basic premise that the borrower pays interest to the lender, but not vice versa, even if there is no explicit provision in the floating rate loan agreement, but such supplementary interpretation needs to be applied more carefully. When there is no explicit provision or agreement, a legitimate intention should be examined in the light of the purpose of the contract, transaction practices and customs, social and economic conditions at the time when the contract was signed, and characteristics or properties of contracting parties(i.e. whether they are experts or not), applicable laws, interpretations related to interest payment obligations under the loan agreement should be carefully approached. It is also possible to set the lender to pay a certain amount to the borrower by applying a negative interest rate according to the principle of freedom of contracts. In the case of a loan agreement that is set to pay a negative interest rate by agreement between the parties, it is likely to be an atypical contract or an anonymous contract, which contract is not covered by or regulated under the Civil Act of Korea. Interest at this case does not conform to the traditional concept of interest as a consideration for the use of the original, and rather it has the nature of compensation for damages or storage fees or fees due to changes in the value of money. In a typical transaction contract, standardized financial contract format widely used internationally, the contents of negative interest rates has already been included through revisions. There are three contractual rules regarding negative interest rates: “Negative Interest Rate Method” in the 2006 ISDA Glossary, Negative Interest Rate Protocol in May 2014, and “Zero Limit Interest Rate Provision” in LMA Loan Contracts. There seems to be no domestic court rulings regarding negative interest rates under the loan agreement in the Republic of Korea. However, in other countries, there already exist some court rulings and academic discussions related to handling of negative interest rates under loan agreements. The Swiss Supreme Court ruled that interest payment obligations under loan agreements cannot be imposed on lenders unless otherwise stipulated between the contracting parties. The British High Court also denied lenders’ obligation to pay negative interest rates to borrowers. In contrast, the Dutch Financial Dispute Mediation Organization recognized lenders’ obligation to pay negative interest rates to borrowers. It is necessary to increase the predictability of legal handling of negative interest rates and resolve uncertainties through the enactment of guidelines or amendment of the laws. Meanwhile, the central bank including Bank of Korea is considering the issuance of central bank digital currency (CBDC), and the implementation of negative interest rates, which needs further analysis of its legitimacy issues, such as whether the Bank of Korea has the authority to impose a negative interest rate on the reserves banks hold with it, and its breach of constitutional law issues such as basic right infringement.