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(영문) 대법원 2014.06.12 2012도8483

간접투자자산운용업법위반

Text

The appeal is dismissed.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to Article 57(1)5 of the former Indirect Investment Asset Management Business Act (amended by Act No. 8516, Jul. 19, 2007; hereinafter “former Indirect Investment Act”) and Article 55(1)2 of the Enforcement Decree of the said Act (amended by Presidential Decree No. 20462, Dec. 28, 2007); any officer or employee in charge of sales at the selling or selling company of indirect investment securities shall not engage in the act of undermining the interests of investors, which is likely to seriously affect the value of indirect investment securities, without notifying investors thereof; and Article 182 subparag. 10 of the former Indirect Investment Act provides that any person who violates the said provision shall be punished.

However, in light of the fact that Article 2 subparag. 13 of the former Indirect Investment Act provides that “the beneficiary certificates and stocks of an investment company” as “indirect securities,” and Article 47(1) and (2) of the former Indirect Investment Act provides that beneficial rights of an investment trust shall be equally divided and indicated as beneficiary certificates, and that beneficiaries shall have equal rights according to the number of units of beneficiary certificates with respect to redemption of trust principal and distribution of profit, etc., in the case of an investment trust, the term “matters that have significant negative impacts on the value of indirect investment securities” refers to the important matters that greatly reduce the possibility of realizing rights to redemption of trust principal trust and distribution of profit.

In addition, what kind of matter has a "serious negative impact" shall be considered as the characteristics of indirect investment securities, the management method of investment trust property, the structure of profits, expected profits, the level of risk, the value of provided security, and reasonable investors.