[2] Whether an asset management company under the former Indirect Investment Asset Management Business Act may be deemed to have fulfilled its duty to protect investors on the sole basis of the fact that the asset management company provided sales auxiliary materials, etc., including indications that may mislead the company about important matters, other than the investment prospectus, to the sales company and investors, and that the sales auxiliary materials, etc., which affected investors' investment decisions, contain information faithful to the investment

[3] The case holding that Gap company and Eul bank jointly are liable for damages suffered by Byung et al. due to Gap's accession to the fund, in case where Gap's offering of beneficiary certificates of the fund whose main target is investment, using indications that may cause misunderstandings as to important matters in the sales assistance data, such as advertising place and the NA data, or providing them with information that lose balance as to the profits and risks of investment trust, and Eul, a selling company, actively soliciting investors Byung et al. to subscribe to the fund in accordance with the information provided by Gap company, without accurately recognizing the risk of causing losses due to Byung et al.'s offering of the fund

1. As to the grounds of appeal on the Defendants’ liability for damages

A. The distribution company stipulated in the former Indirect Investment Asset Management Business Act (amended by Act No. 8635 of Aug. 3, 2007 and enforced as of Feb. 4, 2009; hereinafter “Indirect Investment Act”) is not merely an asset management company’s agent but also an investor’s position of recommending investors to make investments and selling beneficiary certificates in its own name. In cases where such a distribution company interferes with an ordinary investor lacking experience in trading, or causes damage to investors by actively soliciting transactions with excessive risk, in light of the customer’s investment situation, due to its violation of the duty to protect investors, the distribution company is liable to compensate for damages caused by the tort. The distribution company, when it solicits investors to acquire beneficiary certificates, must provide investors with an asset management company with its major contents, explain its major contents, misunderstanding the investment prospectus, performance and possibility of loss to investors, etc. Therefore, it is sufficient and accurate that the distribution company did not provide an asset management company’s duty to explain the investment prospectus’s investment prospectus’s content and content, including investment prospectus’s performance and duty to explain.

In addition, an asset management company provided for in the Indirect Investment Act is in a position to produce and distribute information on investment trust as well as a person who has a direct interest in the sale of beneficiary certificates even if the company does not directly take charge of the sales of beneficiary certificates. As such, such asset management company is obligated to provide the company or investor with correct information on the profit structure and risk factors of investment trust so that investors can make reasonable investment decisions based on such information. Information provided in the course of sales of beneficiary certificates by the asset management company is basically the content of investment prospectus. However, in a case where the asset management company directly prepares and delivers and delivers sales auxiliary materials that assist investors in understanding the contents of investment prospectus in addition to investment prospectus or advertisements that inform the characteristics of the investment trust, the sales auxiliary materials or advertisements included information that could cause misunderstanding about important matters or the profit and risk of the investment trust, and if that information affects investors' judgment in the course of sales of beneficiary certificates by the selling company, the asset management company cannot be deemed to have fulfilled its duty to protect investors only because it provided the asset management company with the investment prospectus (see, e.g., Supreme Court Decision 20012Da278.

B. Examining the record in light of the above legal principles, the OTC derivatives, the main investment of which is the investment of the instant fund, are structured based on the stock swap (EDS) and are different from the general bonds or bank deposits. The quarterly final revenue with the stock swap premium is also different from the ordinary interest rate. Since it was difficult for investors to understand this in a proper manner, an asset management company and the Defendants, the company and the selling company, have a duty to provide investors with correct information so that investors can make reasonable investment decisions, and explain its contents so that investors can understand the same. However, in light of the above, the Defendant Korea Asset Management Co., Ltd. (hereinafter referred to as the “Defendant us”) has a duty to protect investors by using the instant OTC derivatives trading with the Plaintiff’s financial institution’s own knowledge of the risk that the Plaintiffs would incur losses to the instant OTC derivatives trading, or by providing investors with accurate information about the risk of loss to the Plaintiff’s securities investment fund’s purchase or sale of the instant product and its risk to the Plaintiff’s financial investment fund.

In the same purport, the lower court is justifiable to have determined that the Defendants committed a tort in violation of the duty to protect the Plaintiffs. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of logic and experience and the principle of free evaluation of evidence, or by misapprehending the legal principles

2. As to the ground of appeal on comparative negligence ratio

If the victim was negligent with regard to the occurrence or expansion of damage caused by a tort, such cause shall be taken into account as a matter of course in determining the scope of compensation for damage by the perpetrator. When bridges the ratio of negligence between the two parties, all circumstances related to the occurrence of damage liability in light of the purpose of the system of fair burden of damage shall be sufficiently taken into account. The fact-finding or determination of the ratio of negligence on the ground of comparative negligence shall not be considerably unreasonable in light of the principle of equity (see Supreme Court Decision 2010Da52126, Oct. 28, 2010, etc.).

According to the reasoning of the judgment below, the court below acknowledged the defendants' liability for damages in consideration of the following facts: (a) while offsetting negligence for the reasons stated in its reasoning, ① the fund of this case is a derivatives fund which combines a stock swap (EDS), which is highly dangerous new derivatives, and its structure is complicated and difficult to understand as a general person with no experience in investment because it is difficult to understand it; (b) the defendants actively recommended subscription by introducing the fund of this case as a safe product similar to time deposit; and (c) the plaintiffs have no choice but to trust the defendants' explanation that can be regarded as an expert in financial investment transaction; and (c) the defendants provided sufficient and correct information to facilitate customers' reasonable judgment on the possibility of loss of principal of the fund of this case by comparing the funds of this case with subordinated bonds and national housing bonds, etc. which are the principal-Preservation-type products; and (d) there is a possibility that only the information provided is likely to cause loss to principal" due to insufficient information or being provided to investors.

However, even if considering the circumstances indicated by the lower court in negligence, it is difficult to accept the ratio of liability determined by the lower court, as it is. In other words, an investor of a financial product must carefully review the concept and content of financial product to invest in accordance with the principle of self-responsibility, profit and loss structure, and investment risk, and determine whether to invest. According to the facts and records acknowledged by the lower court, the Plaintiffs appears to have known that at least the funds of this case could have been guaranteed principal through sales supporting data, and ② even though the Plaintiffs recommended that the terms and conditions and investment prospectus be read without confirming the contents of the terms and conditions and the investment prospectus, the Plaintiffs merely subscribed to the explanation of bank employees without confirming the contents. ③ In particular, the Plaintiffs, who are in the position of the Defendants and opposite parties, should try to grasp the risks associated with the transaction of this case, namely, where the principal damages were incurred and the possibility thereof were not provided with sufficient information, may avoid the risk by refusing to engage in the transaction on their own if they were not provided with sufficient information, and ④ the Plaintiffs were able to have been aware of the Defendants’ liabilities other than the Defendants’ employees’ financial crisis.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to comparative negligence, which affected the conclusion of the judgment. The defendants' grounds of appeal pointing this out are justified.

3. As to other grounds of appeal

A. In full view of all the circumstances revealed in the arguments of this case, including the plaintiffs' financing management method, the maturity of the fund of this case is six years, and when the plaintiffs subscribed to the fund of this case, the National Treasury bonds, commercial banks subordinate to commercial banks, and bank deposit interest rate, etc. presented by the defendant us as comparative products at the time of the plaintiffs subscription to the fund of this case, the plaintiffs invested in the stable financial products whose interest rate of at least 5% per annum is guaranteed if they did not commit such tort, and the defendants are aware or could have known of such circumstances. Thus, the court below calculated the amount of damages by deducting the sum of the principal of the fund subscription to the fund of this case and the profits accrued at the interest rate of 5% per annum from the purchase date to the repurchase date.

In light of the relevant legal principles and records, the above judgment of the court below as to the assessment of damages is just and acceptable, and there is no violation of law such as misunderstanding of legal principles as to the requirements for special damages or

B. Furthermore, examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s rejection of the Defendants’ assertion that interest income tax 14% and resident tax 1.4% should be deducted in calculating the amount of damages as above is justifiable. In so doing, the lower court did not err by misapprehending the legal doctrine on

C. Furthermore, the lower court rejected the Defendant Woori Bank’s assertion that the amount of withholding tax should be deducted from the amount of the Plaintiffs’ damages on the grounds that there is no assertion as to the amount of withholding tax as to the revenues that Defendant Woori Bank paid to the Plaintiffs, and there is no evidence to find that Defendant Woori Bank paid withholding tax as to the revenues of the Fund.

In light of the relevant legal principles and records, the above judgment of the court below is just, and contrary to what is alleged in the grounds of appeal, there is no violation of logical and empirical rules and free evaluation of evidence.

4. Conclusion

Therefore, the part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

[Attachment] List of Plaintiffs: Omitted

Justices Kim Shin (Presiding Justice)