우리나라는 1962년 구 이자제한법이 제정·시행되었지만, 1997년 IMF를 맞이하면서 구제금융을 받는 과정에서 고금리정책의 일환으로 1998년 구 이자제한법이 폐지되었다. 이후 대부업법이 제정되었지만, 구 이자제한법이 폐지되고 대부업법이 제정되기 전까지 약 5년간 이자제한제도가 전혀 시행되지 않아 금융시장에서 퇴출된 신용이 불량한 서민들과 중소기업들이 사채시장으로 몰리게 되었다. 이와 같이 특별법에 의하여 고율의 이자를 제한하는 규정이 없는 경우 민법의 일반조항인 민법 제103조 및 제104조에 의하여 규제를 할 수 있는지가 문제된다. 대법원은 민법 제103조를 적용하여 제한초과이자를 무효라고 판시하고 있다. 또한 임의로 지급된 고율의 이자의 반환청구에 대하여 민법 제746조 단서를 적용하여 반환청구를 인정한다. 채권자 및 채무자 모두를 보호하게 된다는 점에서는 매우 바람직한 판단이다. 2007. 3. 29. 다시 이자제한법이 제정되어 같은 해 6. 30.부터 시행됨으로써 고율의 이자 문제는 입법적으로 해결되기는 하였으나, 이러한 특별법이 상황에 따라 폐지될 수 있다고 전제하며 고율의 이자약정을 반사회성의 법리로서 해결하는 문제는 매우 중요할 수 있다. 이 논문에서는 이자제한에 관한 주요국가의 입법례와 더불어 고율의 이자약정에 관하여 반사회성의 법리에 관하여 살펴보고 있다.

The old interest restriction law in Korea was established in 1962 and was enforced. But the period of IMF in 1997, from the process which receives a relief loan, the old interest restriction law was abolished as part of higher interest policy at 1998. The loan business law was established after that, but the old interest restriction law is abolished and before being established the loan business law, the interest restrictive system is not entirely enforced for about 5 years, and for bad credits, the people and small and medium enterprises that are expelled from the financial money market are driven into a private money market. Like this, according to the special law, in case of no regulation which restricts the interest of high rate by Art.103 and Art.104 of the civil law, the possibility of that would be an issue. The Supreme Court decide that excess interest limit is null and void by Art.103 of the civil law. Also it presumes a claim for recapture of high interest rate which is provided discretion by applying Art.746 of the civil law. The creditor and the debtor all are under protection, and I think that it is very desirable. The interest restriction law was established again in 2007 March 29th ,and from 2007 June 30th was enforced, and the interest problem of high rate was solved legislatively, however, depending on the abolishment of the special law, the problem which solves contracted high interest rates as a principle of law on anti-sociality is very important. Therefore, this thesis searches for major national cases legislation as well as high interest rate agreement as a principle of law on anti-sociality.

The old interest restriction law in Korea was established in 1962 and was enforced. But the period of IMF in 1997, from the process which receives a relief loan, the old interest restriction law was abolished as part of higher interest policy at 1998. The loan business law was established after that, but the old interest restriction law is abolished and before being established the loan business law, the interest restrictive system is not entirely enforced for about 5 years, and for bad credits, the people and small and medium enterprises that are expelled from the financial money market are driven into a private money market. Like this, according to the special law, in case of no regulation which restricts the interest of high rate by Art.103 and Art.104 of the civil law, the possibility of that would be an issue. The Supreme Court decide that excess interest limit is null and void by Art.103 of the civil law. Also it presumes a claim for recapture of high interest rate which is provided discretion by applying Art.746 of the civil law. The creditor and the debtor all are under protection, and I think that it is very desirable. The interest restriction law was established again in 2007 March 29th ,and from 2007 June 30th was enforced, and the interest problem of high rate was solved legislatively, however, depending on the abolishment of the special law, the problem which solves contracted high interest rates as a principle of law on anti-sociality is very important. Therefore, this thesis searches for major national cases legislation as well as high interest rate agreement as a principle of law on anti-sociality.

, , , , , , ,

High interest rate agreement, Interest limit, a claim for recapture of high interest rate, Interest restriction law, Loan business law, Anti-sociality, Art.103 of the civil law, Art.746 of the civil law.