Date of the judgment
 2005.12.15 
Case number
 2005 (Ju) No. 560 
Reporter
 Minshu Vol. 59, No. 10 
Title
 Judgment concerning matters that should be stated in a document prescribed in Article 17, Para. 1 of the Money Lending Business Control and Regulation Law where it is impossible to definitely state the matters listed in the said paragraph 
Case name
 Case to seek restitution of unjust enrichment 
Result
 Judgment of the First Petty Bench, dismissed 
Court of the Second Instance
 Nagoya High Court, Judgment of December 8, 2004 
Summary of the judgment
 1. If, due to the nature of the loan contract, it is impossible to definitely state any matters listed Article 17, Para. 1 of the Money Lending Business Control and Regulation Law on a document prescribed in the said paragraph, the moneylender should state equivalent matters in such document.

2. Where the moneylender has provided a loan under the basic contract of pecuniary loan for consumption, under which the borrower may borrow money any number of times up to the predetermined borrowing limit and is required to repay at least the predetermined minimum amount of repayment for installment and interest (what is called a revolving loan), the moneylender should state, in a document prescribed under Article 17, Para. 1 of the Money Lending Business Control and Regulation Law that is to be provided to the borrower for each loan, the repayment period, number of repayment installments, and amount of each repayment installment with respect to the outstanding principal and interest of all loans including the loan concerned on the assumption that the minimum amount of repayment for installment and interest would be repaid on the due date of repayment each month, as the matters equivalent to the statement of the "repayment period and number of repayment installment" and the "amount of each repayment installment" as provided in the said paragraph.		 
References
 (Concerning 1 and 2) Article 17, Para. 1 and Article 43, Para. 1 of the Money Lending Business Control and Regulation Law, Article 1, Para. 1 of the Interest Rate Restriction Law; (Concerning 2) Article 13, Para. 1, Sub-para. 1 (h) of the Implementation Regulations of the Money Lending Business Control and Regulation Law

Article 17, Para. 1 of the Money Lending Business Control and Regulation Law
(Provision of document)
Upon concluding a loan contract, a moneylender shall, without delay, as provided by Cabinet Office Ordinance, provide the other party with a document clarifying the details of the contract with respect to the following matters.
(i) Trade name or name and address of the moneylender
(ii) Date of contract
(iii) Amount of loan
(iv) Loan interest rate
(v) Repayment method
(vi) Repayment period and number of repayment installments
(vii) Details of the provisions on the predetermined amount of damages (including penalties; hereinafter the same), if any
(viii) In cases of daily moneylenders, matters listed in Article 14, Subparagraph 5
(ix) In addition to what is listed in the preceding subparagraphs, matters specified by Cabinet Office Ordinance

Article 43, Para. 1 of the Money Lending Business Control and Regulation Law
(Constructive valid repayment in the case of volunteer payment)
Where the amount of interest voluntarily paid by the debtor under the contract on interest (including money that is regarded as interest under Article 3 of the Interest Rate Restriction Law (Law No. 100 of 1954)) for a pecuniary loan for consumption commercially provided by a moneylender exceeds the upper limit of interest rate prescribed in Article 1, Paragraph 1 of the said law, the interest paid in excess shall, notwithstanding the provisions of the said paragraph, be construed to be valid payment if it falls under any of the following.
(i) Payment under the loan contract concluded with the person to whom a document prescribed in Article 17, Paragraph 1 (including cases where it is applied mutatis mutandis under Article 24, Paragraph 2, Article 24-2, Paragraph 2, Article 24-3, Paragraph 2, Article 24-4, Paragraph 2, and Article 24-5, Paragraph 2; hereinafter the same in this subparagraph) has been provided pursuant to Article 17, Paragraph 1, or all documents prescribed in Article 17, Paragraphs 2 to 4 (including cases where they are applied mutatis mutandis under Article 24, Paragraph 2, Article 24-2, Paragraph 2, Article 24-3, Paragraph 2, Article 24-4, Paragraph 2, and Article 24-5, Paragraph 2; hereinafter the same in this subparagraph) have been provided pursuant to Article 17, Paragraphs 2 to 4
(ii) Payment pertaining to repayment under Article 18, Paragraph 1 (including cases where it is applied mutatis mutandis under Article 24, Paragraph 2, Article 24-2, Paragraph 2, Article 24-3, Paragraph 2, Article 24-4, Paragraph 2, and Article 24-5, Paragraph 2; hereinafter the same in this subparagraph) where a document prescribed in Article 18, Paragraph 1 has been provided

Article 1, Para. 1 of the Interest Rate Restriction Law
(Upper limit of interest rate)
Where the amount of interest under an interest contract for a pecuniary loan for consumption exceeds the amount calculated by the following rate, the interest contract shall be null and void with respect to the portion in excess.
Principal is not more than 100,000 yen: 20% per annum
Principal is not less than 100,000 yen and not more than 1,000,000 yen: 18% per annum
Principal is not less than 1,000,000 yen: 15% per annum

Article 13, Para. 1, Sub-para. 1 (h) of the Implementation Regulations of the Money Lending Business Control and Regulation Law
(Provision of document concerning loan contract)
1. Matters specified by Cabinet Office Ordinance under Article 17, Paragraph 1, Subparagraph 9 of the Law, shall be such matters as specified in the following subparagraphs according to the type of contract listed in the respective subparagraphs.
(i) Loan contract (excluding contracts listed in the next subparagraph and Subparagraph 3): following matters
(h) Due date of each repayment installment and amount of repayment		 
Main text of the judgment
 The jokoku appeal shall be dismissed.
The jokoku appellant shall bear the cost of the jokoku appeal.		 
Reasons
 Concerning Ground 1 for the petition for accepting the jokoku appeal argued by the jokoku appellant
1. The outline of the facts legally determined by the court of the second instance is as follows.
(1) The jokoku appellant is a moneylender registered under Article 3 of the Money Lending Business Control and Regulation Law (hereinafter referred to as the "Law").
(2) On April 13, 1991, the jokoku appellant concluded the following basic contract of pecuniary loan for consumption with the jokoku appellee, and provided the jokoku appellee with the contract document (the contract and the contract document hereinafter referred to as the "Basic Contract" and the "Basic Contract Document" respectively).
(a) Borrowing limit: 200,000 yen
The borrower may borrow money any number of times within the borrowing limit.
(b) Borrowing interest rate: 43.8% per annum
(c) Repayment method: pay at least 15,000 yen as principal with interest accrued thereon on the 15th day of each month
(3) During the period from April 13, 1991, to May 20, 2002, the jokoku appellant, according to the Basic Contract, provided loans to the jokoku appellee as indicated in the "Amount of Borrowing" section of the account statement attached to the judgment of the first instance on the dates indicated in the "Date" section (these loans shall hereinafter be collectively referred to as the "Loans"), and received repayments from the jokoku appellee as indicated in the "Amount of Repayment" section of the said account statement on the dates in the "Date" section (these repayments shall hereinafter be collectively referred to as the "Repayments").
(4) For each of the Loans, the jokoku appellant provided the jokoku appellee with a document titled "Receipt and Transaction Confirmation Note" or "Balance Conformation Note" in the case of lending over the counter at the jokoku appellant's sales offices, or a document titled "Receipt and Detailed Statement" in the case of lending by automated teller machine (ATM) (these documents shall hereinafter be referred to as the "Confirmation Notes.").
(5) Nothing in the Basic Contract Document and the Confirmation Notes states the "repayment period and number of repayment installments" as provided by Article 17, Paragraph 1, Subparagraph 6 or the "amount of each repayment installment" as provided by Article 13, Paragraph 1, Subparagraph 1(h) of the Implementation Regulations of the Money Lending Business Control and Regulation Law (Ordinance of the Ministry of Finance No. 40 of 1983; hereinafter referred to as the "Implementation Regulations").

2. This is a case in which the jokoku appellee alleges that overpayment can be found in the amount of the Repayments if the portion of the amount of paid interest that exceeds the amount calculated at the interest rate prescribed in Article 1(1) of the Interest Rate Restriction Law is appropriated to the payment of principal, and seeks, from the jokoku appellee, reimbursement of overpayment based on the right to claim restoration of unjust enrichment.
Against the jokoku appellee's allegation, the jokoku appellant argues as follows. Although a moneylender shall, upon concluding a loan contract, provide the other party with a document clarifying the details of the contract with respect to the matters listed in Article 17, Para. 1 of the Law (hereinafter referred to as an "Article 17 Document"), the jokoku appellant was unable to state the "repayment period and number of repayment installments" listed in Article 17, Para. 1, Sub-para. 6 or the "amount of each repayment installment" listed in Article 13, Para. 1, Sub-para. 1(h) of the Implementation Regulations because under the Basic Contract, the jokoku appellee had the discretion to decide the amount of repayment installment. Therefore, by providing the jokoku appellee with a document stating other matters prescribed in Article 17, Para. 1 of the Law, the jokoku appellant can be deemed to have provided an Article 17 Document. Thus, the Repayments satisfy the requirement for applying Article 43, Para. 1 of the Law, and in accordance with the said paragraph, the payment of the portion of the amount of paid interest that exceeds the amount calculated at the interest rate prescribed in Article 1(1) of the Interest Rate Restriction Law should be deemed to be valid repayment of interest debt and should not be appropriated to the payment of principal, and therefore there was no overpayment.

3.
(1) In light of the purport and purpose of the Money Lending Business Control and Regulation Law, i.e. ensuring appropriate operation of money lending business and protecting the interests of parties in need of funds (Article 1 of the Law), the requirement for applying Article 43, Para. 1 of the Law as well as the obligation to provide an Article 17 Document should be strictly construed. Where a document provided as an Article 17 Document lacks any of the matters listed in Article 17, Para. 1 of the Law, it should be construed that the requirement for applying Article 43, Para. 1 of the Law is not satisfied (see 2003 (O) No. 386 and 2003 (Ju) No. 390, judgment of the Second Petty Bench of the Supreme Court of February 20, 2004, Minshu Vol. 58, No. 2, 475). If, due to the nature of the loan contract, it is impossible to definitely state any matters listed in Article 17, Para. 1 of the Law, the moneylender cannot be released from the obligation to state such matters, but rather he has the obligation to state matters equivalent to them and he would be construed to have stated the statutorily required matters only by fulfilling such obligation. If a document provided as an Article 17 Document lacks such matters equivalent to the statutorily required matters, it should be construed that an Article 17 Document has not been provided, and therefore the requirement for applying Article 43, Para. 1 is not satisfied.
(2) According to the facts mentioned above, the Loans were provided under the Basic Contract, and it is obvious that under the Basic Contract, the jokoku appellee may (i) borrow money any number of times within the borrowing limit, and (ii) decide the amount of repayment installment freely if it is not below the predetermined minimum amount of repayment installment.
In other words, the Loans were provided under the Basic Contract on the assumption that borrowing and repayment would repeatedly take place within the borrowing limit, and the repayment method applied under the contract was a kind of revolving repayment, i.e. in the case of additional financing, the borrower is not required to promise installment payment of the additional loan but is only required to repay, on the due date of repayment (15th day of each month), the minimum amount of repayment for installment and interest with respect to the outstanding principal of all loans including the additional loan under the Basic Contract at the time of the repayment and interest accrued thereon(hereinafter simply referred to as the "outstanding principal and interest"). Therefore, it was impossible to specify the "repayment period and number of repayment installments" with respect to each loan or the "amount of each repayment installment" (hereinafter referred to as "period of repayment, amount of repayment installment, etc."). Furthermore, the repayment period, amount of repayment installment, etc. would vary depending on whether the jokoku appellee borrowed additional money or how much he would repay on the due date of repayment (15th day of each month). Consequently, it should inevitability be concluded that the jokoku appellant was unable to provide the jokoku appellee with an Article 17 Document stating a definite repayment period or amount of repayment installment, etc. with respect to each loan and the outstanding principal and interest at the time of provision of the loan.
(3) However, even though the jokoku appellant was unable to state a definite repayment period or amount of repayment installment, etc. on an Article 17 Document with respect to the Loans, he cannot be released from the obligation to state the repayment period or amount of repayment installment, etc. on an Article 17 Document. Since it was possible to state in an Article 17 Document the repayment period or amount of repayment installment, etc. with respect to the outstanding principal and interest at the time of provision of each loan on the assumption that the minimum amount of repayment for installment and interest would be repaid on the due date of repayment (15th day of each month), the jokoku appellant should have been obliged to provide the jokoku appellee with an Article 17 Document containing such statement as matters equivalent to a definite repayment period, amount of repayment installment, etc. If an Article 17 Document indicates the repayment period, amount of repayment installment, etc. on the assumption that the minimum amount of repayment for installment and interest would be repaid on the due date of repayment (15th day of each month), the borrower can, upon each borrowing, understand when the outstanding principal and interest thereon could be completely repaid on the assumption that the minimum amount of repayment installment and interest would be repaid on the due date of repayment (15th day of each month) and that he would not receive no additional loan, which would enable the borrower to recognize how heavily he is currently indebted and avoid repeating borrowing unthinkingly. Thus, this is as effective as stating a definite repayment period, amount of repayment installment, etc. in an Article 17 Document.
According to the facts mentioned above, nothing in the Basic Contract Document and the Confirmation Notes can be construed to be equivalent to a statement of a definite repayment period, amount of repayment installment, etc. Consequently, it cannot be deemed that an Article 17 Document was provided with respect to the Loans, and therefore the requirement for applying Article 43, Para. 1 is not satisfied.

4. The judgment of the second instance that goes along with this reasoning can be accepted as justifiable. The jokoku appellant's argument cannot be accepted.

Therefore, the judgment was rendered in the form of the main text by the unanimous consent of the Justices.		 
Presiding Judge
 Justice SHIMADA Niro
Justice YOKOO Kazuko
Justice KAINAKA Tatsuo
Justice IZUMI Tokuji
Justice SAIGUCHI Chiharu
(This translation is provisional and subject to revision.)