2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 5% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

A. On December 28, 2007, the Defendant established a PACIFIC INVEMINGG PET. LTD (hereinafter “foreign Singapore corporation”) as an investment advisory company.

B. From February 2012, the Defendant made a financial investment by using five accounts under the name of the Plaintiff (hereinafter collectively referred to as “instant account,” and the individual account refers to “one account, etc.” according to the following sequence) in the form of the Plaintiff’s ordering agent, and withdrawn the profit accrued until September 11, 2013.

(1) A new financial investment company (Account Number 4 omitted)

(2) A single investment securities company (Account Number 5 omitted)

(3) Hyundai Futures Co., Ltd. (Account Number 1 omitted)

(4) Hyundai Futures Co., Ltd. (Account Number 2 omitted)

(5) Hyundai Futures Co., Ltd. (Account Number 3 omitted)

C. The Plaintiff paid KRW 1,232,720,667, which is one half of the profits generated from financial investment by making use of the instant account, to the Defendant or the non-party Singapore.

D. Since then, continuous loss occurred, the Defendant paid USD 90,00 (hereinafter “$”) to the Plaintiff around March 2014.

E. As a result of the financial investment using the instant account, a loss of KRW 950 million was incurred, and thereafter, the Plaintiff withdrawn each of the investments on July 9, 2014 from the first and second accounts on July 4, 2014 to the third, fourth, and fifth accounts on July 4, 2014.

F. The Defendant or the non-party Singapore corporation did not register the financial investment business under the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”).

[Ground of recognition] Gap evidence Nos. 2 through 6, 12 through 14, Eul evidence Nos. 1 (including each number; hereinafter the same shall apply), defendant's personal examination result, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff is seeking payment of KRW 150 million and damages for delay, as part of the money to be paid by the Defendant for the following reasons.

1) The primary cause of the claim

Around March 2013, the Plaintiff and the Defendant opened an account with a financial investment company designated as the Defendant, and the Defendant, by using this agreement, conducted financial investment with the authority to make investment decisions by the Plaintiff, and concluded an agreement with the Plaintiff to distribute the profits and losses arising from the discretionary sale and purchase as above in 1/2 each of them. The Plaintiff paid 1/2 of the profits to the Defendant pursuant to the agreement.

However, the above agreement between the plaintiff and the defendant is null and void in violation of Article 17 of the Capital Markets Act, which is a mandatory provision under a non-registered investment contract.

In addition, it is invalid in violation of Article 98-2 of the Financial Investment Services and Capital Markets Act that the Defendant received 50% of profits while making full-time investments and received contingent remuneration that is linked to the performance of management.

If there is only an agreement between the plaintiff and the defendant on the distribution of profits and there is no agreement on the distribution of losses, the defendant concluded an unfair contract with the plaintiff's old-age, rash, and experience, which is invalid in violation of Article 104 of the Civil Code.

Therefore, the defendant should return to the plaintiff the amount equivalent to the above profit [3,00 US$ 767,00 + 767,00 of the profit of the first account + 597,875.94 US$ 359,377.25 of the profit of the third account + 249,969.89 US dollars) ¡¿ 1/2 of the defendant's equity = 90,00 US$ 898,61.54] as unjust enrichment.

2) Preliminary Claim Grounds

The Defendant shall pay to the Plaintiff the full amount of loss in the first account ($ 132,959.82 of the loss in the first account and USD 243,167.37 of the total loss in the second account + USD 226,630.19 of the third account loss + USD 132,57.32 of the 4 account loss + USD 159,205.36 of the 5 account loss + USD 159,205.36 of the 5 account loss) x USD 1/2-90,000 of the Defendant’s share = 423,749.94 of the 42 account loss) agreed to bear by the Defendant.

B. Defendant’s assertion

From February 2, 2012 to 16 months, the Defendant represented the Plaintiff’s investment order by using the instant account. Since then, the Plaintiff entered into an investment advisory agreement with Nonparty Singapore and paid 50% of investment interest as advisory fees to Nonparty Singapore. After that, according to the Plaintiff’s proposal, the Plaintiff entered into a partnership agreement with the Plaintiff to attract investment funds, manage the investment funds, and distribute the profits therefrom by 50%.

There was no agreement between the Plaintiff and the Defendant on the allocation of losses, and even if there was such an agreement, it is invalid in violation of Article 55 of the Capital Markets Act, which is a mandatory provision.

3. Determination

A. Nature of the contract entered into by the Plaintiff and confirmation of the other party

The Defendant paid USD 90,00 to the Plaintiff around March 2014, as recognized earlier, and the facts established by the Defendant of the non-party Singapore are as follows. In full view of the above facts, the Plaintiff, which can be recognized by the respective entries in subparagraphs 1 and 11 of the evidence, the result of the Defendant’s personal examination, and the overall purport of oral arguments, is reasonable to deem that the Plaintiff finally entered into a partnership agreement with the Defendant with the content that the Plaintiff would make an investment through the instant account when the Plaintiff raised investment funds and deposited into the instant account, and that the Plaintiff and the Defendant would distribute one half of the investment profits to the Plaintiff (hereinafter “instant agreement”).

① The Defendant has received 50% of the investment income from the instant account directly from the Defendant’s personal account or cash.

② Nonparty Singapore Company holds 100% of its shares.

③ 피고는 원고에게 2014. 2. 4. “원금 내가 보전하기로 했지”, “그러면 내가 달러로 부족한 부분을 채워줘야지”, “내가 너한테 차액을 현금으로 주겠다고 달라로”, “너는 5대 5였잖아 나하고”라고 말하였고, 2014. 3. 7. “원금 내가 보전하기로 했고”, 2014. 3. 14. “내가 변제를 못 해 줄까봐 지금 그거가 제일 큰 걱정 아니냐”, “내가 그 지금 너한테 받은 돈의 상당부분은 저기 싱가폴 회사 매출을 잡아 놨어. 그것 함부로 뺄 수가 없단 말이야”, 2014. 6. 15. “내가 그때 약속을 했으니까 뭐 지키는 게 도리라고 생각하는 데”, “내가 너한테 변제 하는 것, 하나대투 얘기하는 거야”라고 말하는 등 원고와 사이에 계약의 당사자가 자신임을 전제로 하는 대화를 하였다.

④ Meanwhile, the Defendant’s first contract entered into between the Plaintiff and the Plaintiff was the contract that the Defendant was acting as an agent for the Plaintiff. Whether Nonparty Singapore changed the contract to provide investment advisory services to the Plaintiff, and finally, the contract was the same as a partnership that aims to divide investment profits between the Plaintiff and the Defendant. This is only different from the Plaintiff’s assertion that the Defendant was acting as an agent for the Plaintiff, and that the Defendant was paid 50% of investment profits by using the Plaintiff’s funds, and it is mutually consistent with

B. Judgment as to the primary cause of the claim

1) Determination on the assertion that a violation of prohibition against unregistered business conduct is invalid

As seen earlier, it is acknowledged that the contract of this case constitutes a partnership business agreement, however, in full view of the result of the defendant's personal examination and the purport of the entire arguments, it can be recognized that the defendant or the non-party Singapore corporation did not register an investment advisory business or discretionary investment business, and if the contract of this case constitutes unregistered investment business, it shall be examined whether it is denied.

Article 17 of the Financial Investment Services and Capital Markets Act prohibits any person from running an investment advisory business or discretionary investment business without registration (including registration of changes) for the financial investment business under this Act. Article 17 of the Financial Investment Services and Capital Markets Act prohibits any person from running an investment advisory business or discretionary investment business, and imposes criminal punishment on any person who violates Article 45 (1).

① However, Article 43(2)4 of the Capital Markets Act and subparagraph 3 of the attached Table 1 provide that when a financial investment business entity entrusts a third party with the business of an unregistered investment advisory business or discretionary investment business, and a person entrusted with the business of an unregistered investment advisory business or discretionary investment business operates an unregistered investment business, the Financial Services Commission may order the cancellation or modification of the business of entrustment, and there is no provision prohibiting the validity of the business of entrustment immediately on the ground of the unregistered investment advisory business or discretionary investment business. ② If an unregistered business entity fails to notify an investor of the non-registration of the non-registration of the investment advisory business or discretionary investment business, the investor may seek compensation for damages on the ground of the failure, and thus, it is not profitable to deny the validity of the contract of entrustment in order to protect investors. Meanwhile, considering the fact that it is difficult for an unregistered business entity to return the discretionary investment service provided by the unregistered business entity while allowing the non-registered business, the Financial Investment Services and Capital Markets Act does not deny the legal effect of the investment advisory business or discretionary investment contract between the unregistered business entity and investors.

Therefore, the plaintiff's assertion that the contract of this case is null and void due to the defendant's unregistered business act is groundless.

2) Determination on the assertion that a violation of bonus restriction is null and void

Article 98-2 of the Financial Investment Services and Capital Markets Act prohibits, in principle, an investment advisory business entity or a discretionary investment business entity from receiving contingent remuneration that is linked to the investment result or management performance of discretionary investment property.

However, according to Article 8(1), (5), and (6) of the Financial Investment Services and Capital Markets Act, an investment advisory business entity or a discretionary investment business entity subject to Article 98-2 of the said Act refers to a person who runs such business upon registration with the Financial Services Commission. Thus, the Defendant, who did not register as an investment advisory business entity or discretionary investment business entity, is not subject to

Therefore, the plaintiff's above assertion is without merit under the premise that Article 98-2 of the Capital Markets Act applies to the defendant.

3) Determination as to the assertion that a juristic act which has manifestly lost fairness is null and void

The aforementioned facts alone are insufficient to recognize that the instant contract was concluded by the Defendant using the Plaintiff’s old-age, rashness, and experience, and thus, it is considerably unfair. There is no other evidence to acknowledge it.

C. Determination on the conjunctive cause of claim

1) Determination as to the cause of claim

As seen earlier, the instant contract constitutes a partnership agreement between the Plaintiff and the Defendant, which constitutes a partnership agreement under the Civil Act.

However, according to Article 711(2) of the Civil Act, when the ratio of distribution of profits or losses has been determined, such ratio shall be presumed to be common interests and losses, and the fact that the ratio of distribution of profits between the plaintiff and the defendant under the contract of this case is 50% per each, is acknowledged as above. The court's one of the above courts' one of the financial investment is as of October 17, 2016, as of October 18, 2016, as to Samsung C&T corporation, as of M&T corporation, as of October 18, 2016, as to M&T corporation, as of October 18, 2016, as of the order to submit financial information of each of the new financial investment companies as of October 21, 2016, and as to the new financial investment companies as of October 21, 2016, it is insufficient to recognize that the plaintiff and the defendant

Therefore, the defendant is obligated to pay to the plaintiff 50% of the investment loss amount of the account of this case arising from the discretionary sale.

The Plaintiff asserted that the Defendant agreed to pay the full amount of the loss to the first account, but it is insufficient to acknowledge the above assertion only with the descriptions of the evidence Nos. 8 and 11, and there is no other evidence to prove otherwise.

2) Judgment on the defendant's assertion

Therefore, the Defendant’s assertion that the loss distribution agreement is null and void as it violated the Capital Markets Act is not applicable to the instant contract, is without merit.

D. Sub-committee

Ultimately, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at a rate of 150 million won and 20% per annum from August 9, 2014 to September 30, 2015, which is obvious from the day following the delivery date of a copy of the complaint of this case claimed by the Plaintiff, to September 30, 2015 (Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc. from the next day to the day of full payment) within the limit of 1/2 of the above investment losses ( there is no evidence to acknowledge that the Plaintiff and the Defendant have determined the due date of payment of the claim for allocation of losses under the contract of this case, which constitutes a claim without a fixed period of due date. In addition, the Defendant’s claim for damages for delay has not been implemented since the statutory interest rate of Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (Presidential Decree No. 2653) was reduced to 15% per annum.

4. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jae-ok (Presiding Judge)