借款法上“利息透明”原则之释义与运用

Interpretation and Application of “Transparency in Interest” in the Law of Borrowing

“利息透明”原则是指贷款人应当向借款人准确披露借款合同的实际利率。该原则并不隶属于合意制度,而是借款法的专有原则。“利息透明”原则具有借款人保护之意旨,仅适用于消费借贷、利息计算格式条款等情形。在利息计算格式条款违反该原则时,应在内容审查框架内审视该条款之效力。在消费借贷的贷款人违反该原则时,可透过公序良俗条款续造裁判规则。在消费借贷以及借贷双方存在明显力量落差的其他场合,未准确披露实际利率还可能触发缔约过失责任。

The principle of transparency of interest means that the lender should disclose the real interest rate on the loan contract to the borrower. This principle is not part of the consensual system but unique to the loan law. The principle of transparency of interest is only for the protection of borrowers, and only applies to consumer loans and interest calculation clauses and so on. If the format clause of interest calculation violates this principle, the validity of this clause should be checked within the framework of a content review. In the case of a breach of this principle by the lender of a consumer loan, the violating clause could be checked by means of public policy. Failure to accurately disclose the real interest rate may also trigger liability for contractual negligence in consumer loans and other types of loans where there is a clear power gap between the lender and the borrower.