Date of the judgment |
2004.02.20 |
Case number |
2002(Ju)No. 912 |
Reporter |
Minshu Vol. 58, No. 2 |
Title |
Judgment concerning the case in which a debtor paid interest with the use of a document provided by a moneylender, which stated the matters prescribed in Article 18, para. 1 of the Money Lending Business Control and Regulation Law and which was combined with a bank transfer form, through bank transfer into a moneylender's bank account, and whether or not the requirements prescribed in the said article are satisfied in such case was disputed |
Case name |
Case to seek restitution of unjust enrichment |
Result |
Judgment of the Second Petty Bench, quashed and remanded |
Court of the Second Instance |
Sapporo High Court, Judgment of February 28, 2002 |
Summary of the judgment |
Where a moneylender, before receiving repayment of a loan, provides a debtor with a document which states the matters prescribed in Article 18, para. 1 of the Money Lending Business Control and Regulation Law as being required to be stated in a document that should be provided to a debtor after receiving repayment and which is combined with a bank transfer form designating the moneylender's bank account, even if the debtor pays interest through bank transfer into the designated bank account with the use of this document, the moneylender cannot be deemed to have provided a document that satisfies the requirements prescribed in Article 18, para.1 of the said law, which is a requirement for applying the provision of Article 43, para.1 of the said law. |
References |
Article 18, para.1 and Article 43, para.1 of the Money Lending Business Control and Regulation Law, and Article 1, para.1 of the Interest Rate Restriction Law Money Lending Business Control and Regulation Law Article 18, para.1 (The document to be delivered upon receipt of repayment) A moneylender shall, whenever it receives repayment of all or part of debts under a loan contract, immediately in accordance with cabinet orders, provide the person who has made the repayment with a document which states the following matters: (1) trade name, name, and address of the moneylender; (2) date of contract; (3) amount of loan (in the case of a guarantee contract, the amount of loan under guarantee; hereinafter the same applies to Article 19, Article 20, and Article 21, para.2); (4) amount received and interest thereon, the amount of indemnification based on the predetermined amount of indemnification, and the amount to be appropriated for the principal; (5) date of receipt; (6) matters other than those provided in the preceding subparagraphs as prescribed in cabinet orders. Article 43, para.1 (Constructive repayment in the case of voluntary payment) Where the amount of interest paid voluntarily by the debtor in accordance with a contracted rate of interest (including what is regarded as interest under Article 3 of the Interest Rate Restriction Law (Law No. 100 of 1954)) of pecuniary loan for consumption commercially provided by a money lender exceeds the upper limit of interest rate prescribed in Article 1, para.1 of the said law, if the payment falls under both of the following, the payment of the portion in excess shall be regarded as valid repayment of interest debt notwithstanding the provision of the said paragraph: (1) Payment made under a loan contract where a document prescribed in Article 17, para.1 is provided to the party to the contract in accordance with the provision of Article 17, para.1 (including the cases in which it is applied mutatis mutandis under Article 24, para.2, Article 24-2, para.2, Article 24-3, para.2, Article 24-4, para.2, and Article 24-5, para.2; hereinafter the same in this sub-paragraph) or where all documents prescribed from Article 17, para.2 to para.4 are provided to the party to the contract in accordance with the provisions of Article 17, para.2 to para. 4 (including the cases in which they are applied mutatis mutandis under Article 24, para.2, Article 24-2, para.2, Article 24-3, para.2, Article 24-4, para.2, and Article 24-5, para.2; hereinafter the same in this sub-paragraph); (2) Payment made in accordance with the provision of Article 18, para.1 where a document prescribed in Article 18, para.1 is provided in accordance with the provisions of Article 18, para.1 (including the cases in which it is applied mutatis mutandis under Article 24, para.2, Article 24-2, para.2, Article 24-3, para.2, Article 24-4, para.2, and Article 24-5, para.2; hereinafter the same in this sub-paragraph). Interest Rate Restriction Law Article 1, para.1 (Upper limit of interest) If the interest rate contracted for a pecuniary loan for consumption exceeds the rates of interest prescribed below, the portion in excess shall be deemed invalid. - Where the principal is less than 100,000 yen: 20% per annum; - Where the principal is 100,000 yen or more but less than 1,000,000 yen: 18% per annum; - Where the principal is 1,000,000 yen or more: 15% per annum. |
Main text of the judgment |
The judgment of the second instance shall be quashed. This case shall be remanded to the Sapporo High Court. |
Reasons |
Concerning the grounds for the petition for accepting the jokoku appeal submitted by the attorneys for jokoku appellant TOIKAWA Kouichi, HAMAMOTO Koichi, TAKENOUCHI Hiroto, NIIKAWA Ikuma, MORIKOSHI Soushiro, and YASOJIMA Tamotsu. 1. The outline of the facts determined by the judgment of the second instance is as follows. (1) On November 26, 1993, a company, A, concluded a basic transaction contract on continuous transactions including a contract of pecuniary loan for consumption, with the jokoku appellee, who engages in money lending business under the registration prescribed in Article 3 of the Money Lending Business Control and Regulation Law (hereinafter referred to as the "Law"), and on that day, the jokoku appellant, the representative director of A, provided a joint and several guarantee with respect to the debts incurred by A for the jokoku appellee under the basic transaction contract, by setting the maximum amount of guaranteed principal at 2 million yen and the end of guarantee period at November 25, 1998. On September 27, 1995, A and the jokoku appellee renewed the basis transaction contract, and upon this occasion, the jokoku appellant and the jokoku appellee revised the contract on the joint and several guarantee to change the maximum amount of guaranteed principal to 4 million yen and the end of guarantee period to September 26, 2000. (2) In accordance with the basic transaction contract, the jokoku appellee lent A (i) 2 million yen on November 26, 1993, with the repayment date of January 5, 1993, and (ii) 2 million yen on September 27, 1995, with the repayment date of November 5, 1995, at a daily interest rate of 0.8 percent (hereinafter these loans referred to as the "Loans"). The repayment date of the principal for the Loans was deferred every month repeatedly. (3) On about every 25th day of the month, about 10 days before the repayment date of the principal of the Loans (5th day of every month), the jokoku appellee sent A a document which required payment through bank transfer of the amount of interest for the Loans for the next one month from the repayment date and the amount of expenses therefor (interest and expenses shall be hereinafter collectively referred to as "Interest, etc.") and which was combined with a bank transfer form designating the jokoku appellee's bank account (hereinafter referred to as the "Bill"). The amount of Interest, etc. exceeded the upper limit of interest prescribed in Article 1, para.1 of the Interest Rate Restriction Law (hereinafter referred to as the "Upper Limit of Interest"). The Bill also stated all the matters prescribed in Article 18, para.1 of the Law including the details of appropriation of money paid as interest, etc., excluding some bills on which the details of appropriation was not clearly indicated. As repayment of debts under the Loans, the jokoku appellant paid, in the name of A, the amounts of money indicated in the "Amount of Repayment (Yen)" section on the dates indicated in the "Date of Transaction" section numbered from 2 to 22 and 24 to 77 in the account statement attached to the judgment of second instance (these repayments hereinafter referred to as the "Repayments"). 2. This is a case brought by the jokoku appellant to seek return of the excess payment from the jokoku appellee, based on the right to seek restitution of unjust enrichment, alleging that the payment would be in excess if the portion of the amount paid as interest, etc. for the Loans, which was in excess of the Upper Limit of Interest, was appropriated for the repayment of the principal and the payment in excess was in effect paid by the jokoku appellant, and based on the right of subrogation that the jokoku appellant has as a creditor to A, alleging that if any part of the payment in excess was regarded as repayment of debts by A, the jokoku appellant could exercise by subrogation A's right to seek restitution of unjust enrichment from the jokoku appellee in order to protect the right to be reimbursed from the principal creditor, A. 3. The court of second instance dismissed the jokoku appellant's claim, denying the jokoku appellee's obligation to restitute unjust enrichment from the Repayments, on the following grounds. In the case where a moneylender provides the debtor, before the repayment date, with a document which states the matters prescribed in Article 18, para.1 of the Law (hereinafter referred to as "Article 18 Document") and the document is prepared in combination with a bank transfer form designating the moneylender's bank account, when the debtor pays, with the use of the document, the amount indicated in the document through bank transfer, the debtor can be deemed to become fully aware, upon conducting the procedures for bank transfer or immediately thereafter, of the matters to be notified under the said paragraph including the details of appropriation of the amount paid, and by having provided the document, the moneylender can be deemed to have satisfied the requirements prescribed in the said paragraph at the time when the debtor has completed the procedures for bank transfer and obtained a receipt of the amount transferred. Consequently, by having provided the document, the moneylender can be deemed to have satisfied the requirements prescribed in the said paragraph even without further providing the debtor with an Article 18 Document after the completion of the bank transfer. In this case, the jokoku appellee provided A with the Bill which stated the matters prescribed in Article 18, para.1 of the Law about 10 days before the repayment date of the Loans (although the details of appropriation were not clearly indicated in some of the bills), and therefore with respect to the payment made by the jokoku appellant into the jokoku appellee's bank account of the amount indicated in the Bill with the use of the bank transfer form which was combined with the Bill, the requirements prescribed in the said paragraph can be deemed to have been satisfied. For this reason, the voluntary payment by the jokoku appellant of the portion in excess of the upper limit of interest in accordance with the contracted interest rate for the Loans can be regarded as valid repayment of interest debt under Article 43, para.1 of the Law. 4. However, the judgment of the second instance cannot be accepted for the following reasons. Article 43, para.1 of the Law stipulates that even where the amount of interest paid voluntarily by the debtor in accordance with a contracted rate of for pecuniary loan for consumption commercially provided by a moneylender exceeds the rate of the Upper Limit of Interest and the contract is to be invalidated with respect to the portion in excess under the Interest Rate Restriction Law, if the moneylender observes the obligation to provide the debtor with documents that satisfy the requirements prescribed in Article 17, para.1 and Article 18, para.1 of the Law (these provisions were provided in order to regulate money lending businesses), the payment of the portion in excess shall be regarded as valid repayment of interest debt notwithstanding the provision of Article 1, para.1 of the Interest Rate Restriction Law. Considering that the Law was enacted for the purport and purpose of stipulating necessary restrictions on money lending businesses with the aim of ensuring appropriate management of money lending businesses and protecting the interests of fund receivers (Article 1) and that the Law also stipulates the punishments for violation of these paragraphs (Article 49, sub-para. 3 of the Law before amendment by Law No. 136 of 2003), the requirement for applying the provision of Article 43, para.1 of the Law should be interpreted in a strictly literal sense. Furthermore, even if the amount that exceeds the Upper Limit of Interest is paid through bank transfer into the moneylender's bank account, the moneylender shall, unless special circumstances exist, provide the debtor with an Article 18 Document immediately whenever he has confirmed the receipt of the payment in accordance with Article 18, para.1 of the Law,(See 1996(O)No. 250, judgment of the First Petty Bench of the Supreme Court of January 21, 1999, Minshu Vol. 53, No. 1, at 98). In light of the fact that an Article 18 Document must be provided immediately whenever repayment is made, even if the moneylender has provided the debtor, before receiving the repayment, with a document which states the matters to be stated in the document that the moneylender should provide the debtor, whenever he receives repayment, under Article 18, para.1 of the Law, the moneylender cannot be deemed to have provided a document which satisfies the requirements prescribed in Article 18, para.1 of the Law. Consequently, even though the debtor is provided with a document which states the matters prescribed in Article 18, para.1 of the Law with respect to the document that should be provided to the debtor whenever the moneylender receives repayment and which is combined with a bank transfer form designating the moneylender's bank account and the debtor pays interest with the use of the document through bank transfer into the moneylender's bank account, the moneylender cannot be deemed to have provided a document that satisfies the requirements prescribed in Article 18, para.1 of the Law or to have satisfied the provision of Article 43, para.1 of the Law, nor are any special circumstances seen that affirm the application of the said paragraph. It would follow that the judgment of second instance that is contrary to the above reasoning contains an apparent violation of laws that has affected the judgment. 5. From all of the above, it should be concluded that the appellant's argument is well-grounded, and without the need to examine other issues, the judgment of second instance shall inevitably be quashed. For this reason, this case shall be remanded to the court of second instance for further examination. Therefore, the judgment was rendered in the form of the main text by the unanimous consent of the Justices. |
Presiding Judge |
Justice KAMEYAMA Tsugio Justice FUKUDA Hiroshi Justice KITAGAWA Hiroharu Justice TAKII Shigeo |
| (This translation is provisional and subject to revision.) |