[2] The meaning and validity of the provision on restriction on transfer of savings passbook under the beneficiary certificate savings agreement

[3] The nature of trust relationship under the Securities Investment Trust Business Act, and the subject of whom the disposal right over the corporate bonds held by the truster company through the trustee company as an investment trust property belongs = the truster company

[4] The case holding that it does not constitute a set-off prohibited under Article 17 (4) of the Securities Investment Trust Business Act to set off deposits against beneficiary certificate holders (beneficiary) by a truster company under the Securities Investment Trust Business Act with a bond guarantee obligation as an automatic bond

[2] In principle, the right to benefit divided in a securities investment trust can be transferred with beneficiary certificates (Article 6(3) of the Securities Investment Trust Business Act), but the beneficiary certificates can not be formed with a circulation market in a non-par-value securities relationship. In addition, since the beneficiary can recover the investment money by exercising the right to claim redemption against the truster company, it is not profitable to allow the transfer of beneficiary certificates in an open-end investment trust which is allowed to repurchase. In fact, in the case of open-end investment trust, it is general to restrict the transfer of beneficiary certificates by issuing the beneficiary certificate deposit account in lieu of the beneficiary certificate and preventing the truster company from transferring the deposit account itself without the approval of the truster company, and the beneficiary can recover the investment money by exercising the right to claim redemption against the truster company (in the case of profit-making securities savings, the right to claim redemption in the form of claiming the withdrawal of the savings asset). Therefore, even if the transfer of beneficiary certificates in the beneficiary certificate savings is restricted, it is not unfairly

[3] In the case of an investment trust under the Securities Investment Trust Business Act, the principal obligation of the trustee company is limited to the safekeeping, management, and calculation of trust property. Thus, the trust relationship between the truster company and the trustee company constitutes a passive trust with the main purpose of "storage and management of trust property". Thus, the trust relationship in the Trust Act with the trustee up to the "right to dispose of trust property" differs from its nature, and the "right to dispose of corporate bonds, which the truster company has had the trustee company take over by the trustee company as part of the operation of the investment trust property, belongs to the truster company. Thus, even if the trustee company becomes a creditor in the name of each company, the trustee company bears the obligation to comply with the management order of the truster company for each company.

[4] The case holding that it cannot be set off against Article 17 (4) of the Securities Investment Trust Business Act, on the ground that it is interpreted that Article 17 (4) of the Securities Investment Trust Business Act provides that "a claim against a truster company shall not be set off against the claim belonging to the trust company's trust property," and that it is interpreted that the truster company intends to achieve "the principle of independence of trust property" (the independence between trust property and proprietary property and trust property) by preventing the reduction of the trust property or from misappropriation by preventing the truster company from offsetting its own debts (or debts belonging to separate trust property) incurred regardless of the trust property with the bonds belonging to the trust property with the bonds belonging to the trust property, and it set off against the beneficiary's deposits against the transferee of the beneficiary certificate savings account from the beneficiary with the bonds secured by the beneficiary certificate deposit account with the automatic bonds secured by the trust company acquired through a separate asset operation of the trust company shall be set off against the non-performing bonds that belong to the above separate investment trust property in order to prevent the reduction of the amount corresponding to such deposits by incorporating the above separate investment trust property into a separate investment trust property.

2. The costs of lawsuit shall be borne by the Plaintiff.

A. Conclusion of each investment trust contract between the Defendants and the Seoul Bank

The Defendants are companies dealing with the securities investment trust business under the Securities Investment Trust Business Act (hereinafter referred to as the "Investment Trust Business Act"). On March 31, 1998, the Defendant Korea Investment Trust Company (hereinafter referred to as the "Defendant Investment Trust Company") entered into an investment trust agreement with Seoul Bank, a trustee company, and the Korea Sspart Market Investment Trust Agreement (hereinafter referred to as the "Korea Spart Investment Trust Agreement") on March 31, 1998. The Defendant Korea Investment Trust Company (hereinafter referred to as the "Korea Investment Trust Company") entered into an investment trust agreement with the Seoul Bank (hereinafter referred to as the "trustee") on March 31, 1998.

B. Main contents of each of the above investment trust contracts

The main contents of the terms and conditions incorporated into each of the above investment trust contracts are as follows:

(1) The Defendants, a truster company, have the trustee company keep a certain property (hereinafter referred to as “property”) in custody, determine all matters concerning the management of the property of the investment trust, such as the acquisition, sale, exercise of rights, etc., belonging to the investment trust property, and instruct the trustee company to execute it. On the other hand, the trustee company shall execute the management of the property of the investment trust and keep the acquired securities, etc., and may demand the truster company to withdraw, modify, or correct such instructions if it is deemed that the management company’s instructions on the management of the property of the investment trust violate the statutes or the terms and conditions.

(2) The truster company shall, when it establishes the investment trust for the first time, pay the investment trust money equivalent to the original amount of the investment trust to the trustee company as the property, etc. of the truster company, and the first beneficiary at the time of establishing the

(iii)The period of the investment trust contract shall be from the date of the initial establishment of the investment trust, for one year each for the investment trust and for six years for the business stabilization investment trust;

(4) Any profits and losses arising under the direction of the management company in connection with the management of the investment trust property shall be included in the investment trust property and reverted to the beneficiary.

(5)The trustee company shall deliver without delay to the truster company the repayment of the principal of the investment trust and the distribution of the investment trust profit (hereinafter referred to as "repaid money, etc.") upon the expiration of the period of the investment trust contract, upon the request of the truster company, and after the trustee has delivered the repayment, etc. to the truster company, the truster company shall be liable

(6) A truster company shall divide the beneficial rights (such as the right to redemption, the right to claim redemption of beneficiary certificates, the right to peruse books and documents relating to the investment trust property, or the right to claim delivery of copies or copies thereof) of the investment trust into one unit, and issue the beneficiary certificates indicating the divided beneficial rights. It shall issue the beneficiary certificates in the form of 1,000 shares, 100 shares, 10,000 shares, 1,000 shares, 1,000 shares, 10,000 shares, 10,000 shares, 10,000 shares, 10,000 shares, 1,000 shares, 1,000 shares, 1,000 shares,00 shares, 00 shares, 00,000 shares, and 7 shares

(7)The base price, which is the basis for sale or repurchase of beneficiary certificates, shall be calculated by dividing the total amount of assets of the investment trust as calculated in the Director of the Investment Trust Account on the immediately preceding day less the total amount of liabilities by the total number of units of the right on the immediately preceding day, and the management company shall calculate the base price every day and post it inside the office of the management

(8) A beneficiary who has purchased and held a beneficiary certificate issued by a truster company may claim the truster company to redeem the beneficiary certificate in cash if (a) the period of prohibition of a claim for redemption expires, or if a certain reason (including declaration of bankruptcy of a beneficiary), occurs (where the beneficiary certificate is redeemed, the truster company shall pay in cash the amount converted into the base price on the business day following the date of the claim for redemption; and (b) transfer the beneficiary certificate to another person; and (c) upon the termination of the trust contract, the truster company may claim for payment of the redemption, etc. by submitting the beneficiary certificate to the truster company.

(9)On the other hand, beneficiaries may subscribe to the 'profit-making securities savings operated by the truster company instead of purchasing beneficiary certificates directly from the truster company. The purpose of the beneficiary certificates savings is to promote the convenience of account holders by receiving deposits from beneficiaries who subscribe to the beneficiary certificates savings (hereinafter referred to as "depositors") and by keeping and managing the beneficiary certificates purchased from such funds, and the truster shall deliver the beneficiary certificates, savings account or beneficiary certificates verifying the payment of deposits to account holders and the details of beneficiary certificates, and the type and method of the beneficiary certificates savings shall be governed by the 'profit-making securities savings', and the account holders shall be given preferential treatment, such as exemption from the repurchase fees.

C. Payment of investment trust money and issuance of corporate-type beneficiary certificates by the Defendants

The Defendants paid the investment trust money equivalent to the amount of the principal of the investment trust stipulated in each of the above investment trust agreements to the trustee companies, and issued the beneficiary certificates related to each of the above investment trust agreements in the form of each book.

(d) Subscription to respective savings for beneficiary certificates of the dong bank;

The Daedong Bank Co., Ltd. (hereinafter referred to as the "Dongdong Bank") has subscribed to each beneficiary certificate savings operated by the Defendants in relation to each of the above investment trust contracts, and the specific contents are as follows.

(1)Korea SP beneficiary certificates savings;

On August 19, 1996, the Daedong Bank entered into a beneficiary certificate savings contract (hereinafter referred to as the "Korea Sspht savings contract") by setting forth the type of the savings to Defendant Twit Investment as 57 "Korea Sphart stocks" (related to the Korea Spht investment contract) and paying 3,00,000,000 won as deposits, and Defendant Twit Investment entered into a beneficiary certificate savings contract (hereinafter referred to as the "Korea Spht savings contract") by issuing the beneficiary certificate savings account on the same day with the account number of 50-6170-000-5, the due date of maturity 1999.

On October 31, 1997, the Dong Bank has increased the number of units of beneficiary certificates to 5,000,000 units by saving 2,000,000 won in the beneficiary certificate savings account in addition to the above beneficiary certificate savings account.

(2) Business development beneficiary certificate savings

On March 31, 1998, the Dae-dong Bank set the type of savings to the defendant Mo-dong Bank as the first unit of company development (related to corporate development investment contract) and applied for subscription to the beneficiary certificate savings by paying 5,000,000 won as deposits. The defendant Mo-dong Bank entered into the beneficiary certificate savings contract (hereinafter referred to as the "corporate development savings contract") by issuing the beneficiary certificate savings account on the same day with the account number of 50-461-001-7, the due date of 199.31 March 31, 1999; 5,000,000,000 units of beneficiary certificates;

(3) Business stabilization securities savings

On March 31, 1998, the Dae-dong Bank entered into a beneficiary certificate savings contract (hereinafter referred to as the "business stabilization savings contract") by setting forth the type of savings to Defendant Han-dong Bank as 'corporate stabilization 1' (related to corporate stabilization investment contract) and paying 5,00,000,000 won as deposits. Defendant Han-dong Bank entered into a beneficiary certificate savings contract (hereinafter referred to as the "business stabilization savings contract") by issuing the beneficiary certificate savings account on the same day with the account number of 160-60001-620-050, the due date of maturity 199.31 March 31, 1999; 5,000,000 units of beneficiary certificates;

E. Main contents of each beneficiary certificate savings contract above

The main contents of the terms and conditions incorporated into each beneficiary certificate savings contract (the terms and conditions established and reported by the defendants to the Financial Supervisory Commission) are as follows:

(1)The purpose of the savings is to promote the convenience of account holders by receiving deposits from account holders of the savings (hereinafter referred to as "depositors") and by purchasing, keeping and managing beneficiary certificates with the funds by the management company.

(ii)The types and types of savings: the items of savings shall be the beneficiary certificates of the investment trust established by the management company with the approval of the Financial Supervisory Commission (hereinafter referred to as the "Financial Supervisory Commission") and the types of savings shall be classified into voluntary, objective and installment types;

(3)Purchase of beneficiary certificates, etc.: A truster company shall purchase and deposit beneficiary certificates in accordance with the items and types of deposits paid by an account holder to the account holder, and the truster company may sell or repurchase beneficiary certificates to the account holder per unit.

(d)Preferential treatment for savings holders: exemption from repurchase fees for beneficiary certificates in certain cases, such as exemption from repurchase fees for such beneficiary certificates, when beneficiary certificates are redeemed after the expiration of the term of the savings;

(5) Withdrawal of savings property:

(a)The depositor may at any time request withdrawal of the savings property unless otherwise provided in the terms and conditions of the investment trust agreement.

(b)If a depositor fails to make a claim for withdrawal of a savings asset notwithstanding the termination of the period of the savings or the termination of the savings contract, the period of the savings shall be deemed to continue until the request for withdrawal is made, except that if deemed necessary by the truster, it may withdraw the savings asset and dispose of

(c)If the depositor requests beneficiary certificates at the time of withdrawal of the savings property (not in cash), the truster company shall pay with beneficiary certificates unless there is a special reason.

(6)Restriction on transfer: Savings passbooks shall not be used for transfer or pledge purposes without the approval of the truster company.

(7)Modification of the terms and conditions: A truster company may modify this terms and conditions upon approval by the Financial Supervisory Service, and the Financial Supervisory Service may order the truster company to modify this terms and conditions, if deemed necessary for the protection of public interest or account holders, and the truster company shall report the changes after amending the terms and conditions to the Financial Supervisory Service.

(f) Guarantee of corporate bonds of the counterpart bank, and instruction, etc. to acquire corporate bonds of the counterpart bank;

(1)However, the Daedong Bank held that ① neglected loans and 3,00,000,00,000 interest per annum on August 22, 1997; ② corporate bonds issued on August 22, 2000 on the redemption date; ② Corporate bonds issued on January 9, 1997 on the principal amount of 3,00,000,000,000,000 interest per annum; ② corporate bonds issued on January 9, 2000 on January 9, 200, issued on May 6, 200 by international commercial companies; ③ bonds issued on May 6, 1997 by the International Bank with interest rate of 10,00,000,000,000, 111% per annum, and 10,005,005,000,000 per annum, respectively, as the principal bonds issued by the Bank on May 6, 2000.

(2)On the other hand, as part of the management of the investment trust property created under a separate investment trust agreement from each of the above investment trust contracts, Defendant Moscis has had the trustee company under the relevant investment trust agreement (Seoul Bank Co., Ltd.) acquire each of the above corporate bonds and has kept them in custody through the trustee company.

(g)Decisions to transfer contracts on the reduction of the amount of gold, agreements on the transfer of each beneficiary certificate savings of the lending bank;

(1) On June 29, 1998, pursuant to Article 2, subparagraph 3 of the Act on the Structural Improvement of the Financial Industry (amended by Act No. 5549 of Sep. 14, 1998, hereinafter referred to as the "former Financial Improvement Act") and Article 14, Section 2 of the former Act on the Structural Improvement of the Financial Industry (amended by Act No. 5549 of Sep. 14, 1998, the Bank has designated a large bank as an insolvent financial institution and suspended and suspended its business. At the same time, on June 29, 1998, the Bank has made a decision to transfer a contract to acquire the assets and liabilities of the large bank to the plaintiff and the Korea Assets Management Corporation, including the following:

(a)The Bank shall, after the date of this decision on contract transfer, preserve and manage the assets, liabilities, etc. transferred to it by the plaintiff or the Korea Assets Management Corporation with due care as a good manager until such assets, liabilities, etc. are actually delivered.

(b)In order to act on behalf of the business under paragraph (a) above, the Bank shall enter into the necessary contract with the plaintiff and the Korea Assets Management Corporation immediately after this decision is made.

(c)In transferring claims to the plaintiff or the Korea Assets Management Corporation, it shall faithfully perform all the procedures following the assignment of claims and the change of title, such as notification of, or approval to, the assignment of claims in front of the claimant or the Korea Assets Management Corporation;

(2)The Dong Bank agreed on June 29, 1998 to transfer to the Plaintiff the rights under each of the above beneficiary certificates savings contracts as of June 29, 199.

(3)The Bank later was declared bankrupt by the Daegu District Court on October 23, 1998.

H. Plaintiff’s application for change of name and response against the Defendants

(1) On March 199, the Plaintiff asserted that it had accepted the contract decision as above, and applied for the change of the account holder’s name in the corporate development savings contract to Defendant Han Investment, and the change of the account holder’s name in the corporate stability savings contract to each Plaintiff.

(2) Defendant Han Investment did not comply with the Plaintiff’s above application for change of name, on the other hand, it did not change the name of the account holder of the corporate development savings contract to the Plaintiff on March 31, 199 in response to the Plaintiff’s above application for change of name (the actual title does not change the name of the beneficiary certificate savings account to the Plaintiff, but it did not change the name of the account holder of the corporate development savings contract to the Plaintiff, and it notified the Plaintiff of the appraisal amount of the balance of the beneficiary certificate (the balance of the beneficiary certificate was converted to the base price; hereinafter referred to as “evaluation amount or appraisal amount”) at the time of March 31, 1999 from the beneficiary certificate savings account of the large-scale bank under the corporate development savings contract as of March 31, 199 (the actual title is not the change to the name of the account holder of the beneficiary certificate savings account to the Plaintiff, and at the same time, it could not offset the Plaintiff’s debt settlement against the obligation of the large-scale savings bank.

(3)On the other hand, the name of the account holder of the business contract is still in the name of the lending bank.

I. The plaintiff's lawsuit of this case and the plaintiff's declaration of offset will, etc.

(1) Accordingly, on July 12, 1999, the Plaintiff submitted the instant complaint to the instant court to the Defendants for each payment of the assessment of the balance of beneficiary certificates under each of the above beneficiary certificates savings contracts. On July 20, 1999, the duplicate of the instant complaint was sent to the Defendants respectively.

(2) Each of the above corporate bonds guaranteed by the Daedong Bank did not pay the principal and interest thereof, and as of March 16, 199, the principal and interest of each of the above corporate bonds was totaled of KRW 17,420,815,278 (specific details are as follows: the details are as follows: the defendant Qion submitted a preparatory document to this court on October 13, 1999, which contains the content that each of the above corporate bond guarantee bonds against the Daedong Bank set off against the obligation to pay deposits, etc. to the plaintiff by Defendant Jin Investment based on the enterprise development contract, with its automatic bond bonds as of October 14, 199.

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(1) 3,287,00,000,000 won, 281,000,000 won, 281,797,752 won, 248,355 won, 3,287,000,000 won, 321,750,000 won, 750,000 won, 7,038,492 won, 328,78,492 won, 51,000 won, 7,000 won, 3,000,038,00,000,00,00,00,00,00,00,00,00,00,02,02,02,02,02,02,02,022,02,047,07,0636,360,747,365,367,04,067,04,077,36367,

(3)On the other hand, the notice was given to the Defendants that the beneficiary certificates under each of the above beneficiary certificates savings contract was transferred to the Plaintiff on December 6, 1999, after the filing of the instant lawsuit.

(j)the balance of beneficiary certificates in the savings account in accordance with the savings contract for corporate development and its appraised amount;

Meanwhile, since March 31, 1999, the savings account under the corporate development savings contract has been kept in custody of 5,00,000,000 beneficiary certificates until now, and the amount of the evaluation is KRW 3,563,401,592. [The account (Account No. 50-461-001-7) under the actual corporate development savings contract is already repaid due to the reasons described in paragraph (2) of the above h. [the amount of the evaluation is already deposited in the trust-type savings account (Account No. 50-900-30344-0) under the Plaintiff’s name, but the amount of the evaluation is still kept in custody of 5,00,000,000 beneficiary certificates in accordance with the corporate development savings contract, and there is no dispute between the parties concerned over the amount of the evaluation and 3,563,401,5929).

[Ground of Recognition] A without dispute, Gap evidence 1, 2, 4, 6 through 10, 14, 15, Gap evidence 17-2, Gap evidence 17-1, 2, Eul evidence 18, Eul evidence 4-1, Eul evidence 5, 7-1, Eul evidence 11-4, Eul evidence 12, Eul evidence 14-1, Eul evidence 14, Eul evidence 14-1, evidence 17-2, testimony of the witness class, and the whole purport of oral argument

2. Determination as to whether the right under each of the instant beneficiary certificate savings contracts was transferred to the Plaintiff

A. The parties' assertion

(1) As the cause of the instant claim, the Plaintiff asserted that (a) pursuant to the validity of the decision on contract transfer as of June 29, 1998 (i.e., a separate juristic act between the Daedong Bank and the Plaintiff or a requisite for setting up against the Defendants) the rights under each beneficiary certificate savings contract are transferred to the Plaintiff. (b) Even if not, Dongdong Bank agreed to transfer the rights under each beneficiary certificate savings contract to the Plaintiff according to the said decision on contract transfer, and (or with the Defendants’ consent) notified the Defendants of the transfer of the transfer (or with the Defendants’ consent), the Plaintiff asserted that the rights under each beneficiary certificate savings contract were transferred to the Plaintiff, and that the Defendants paid the assessed amount of each beneficiary certificate balance under each beneficiary certificate savings contract (i.e., the withdrawal of savings assets in each beneficiary certificate savings account as above).

(2) With respect to this, the Defendants asserted that (A) the decision for transfer of the beneficiary certificate savings contract was an act of administrative disposition, and that the rights under each beneficiary certificate savings contract can not be transferred to the Plaintiff only with the administrative disposition such as a separate juristic act or a decision for transfer of the beneficiary certificate without any need to satisfy the requisite for setting up against the Plaintiff. (b) Meanwhile, the above beneficiary certificate savings account (i.e., the rights under the beneficiary certificate savings contract) cannot be transferred without the approval of the Defendants, who are the truster company, and the Plaintiff was aware of the provision of the restriction on transfer. Thus, the rights under each beneficiary certificate savings contract cannot be deemed to have been transferred to the Plaintiff without the approval of

B. Effect of the instant decision for contract transfer

First of all, as to the effect of the decision for transfer of contracts by June 29, 198 (hereinafter referred to as the "decision for transfer of contracts in this case"), the old financial business corporation is subject to the Act on the Grounds of the Decision for transfer of contracts. (1) Where an insolvent financial institution falls under any of the following subparagraphs, the Act may make necessary dispositions, such as the decision for transfer of contracts and the suspension of business for a certain period of not more than 6 months, and request the Minister of Finance and Economy to cancel the authorization, permission, etc. of the insolvent financial institution. (2) If an insolvent financial institution fails to have specific provisions on the procedure or effect of the decision for transfer of contracts in this case (hereinafter referred to as the "decision for transfer of contracts in this case"), it shall be deemed that the Financial Institution's obligation for transfer of contracts in this case was transferred to the insolvent financial institution and the Act on the Improvement of Contracts in this case (hereinafter referred to as the "Act on the Structural Improvement of the Financial Industry"). (3) If the decision for transfer of contracts in this case was made in accordance with the Act.

Therefore, the Plaintiff’s assertion that the above right under each beneficiary certificate savings contract was transferred to the Plaintiff by the validity of the instant decision on contract transfer itself is without merit.

C. Legal relations of beneficiary certificate savings

Next, it is necessary to examine the validity of the rights transfer agreement under each of the above beneficiary certificates savings contracts against the plaintiff of the Dong bank, and to first examine the legal relationship of the beneficiary certificates savings contract (in particular, the legal relationship related to the restriction on the transfer of beneficiary certificates savings).

(1) The institutional significance of beneficiary certificate savings

At present, the practice of securities investment trust transactions in our country has been operated differently from the typical securities investment trust transactions scheduled by the Investment Trust Business Act, and in particular, it is ‘profit securities savings' created and used by securities investment companies, such as the Defendants, in accordance with Article 37, Paragraph 1, Item 2 of the Investment Trust Business Act, by allowing them to conduct securities savings business with the approval of the reduction of the amount of income in accordance with Article 37, Paragraph 1.2 of the Investment Trust Business Act.

Today, there are many cases where the existence of the deed designed for the convenience of the distribution of securities causes rather inconvenience in the distribution, and in particular, as the relationship that can perform the function of the past securities certificate by means of electronic book recording (electronic settlement system), the so-called ‘unauthorizedization (unauthorizedization)' has emerged, and the securities investment trust industry has also reflected this tendency in the securities investment trust industry, and unlike the provisions of the Investment Trust Business Act which reflects the issue of the type of deed (e.g., 100,000 beneficiary certificates) and the sale of beneficiary certificates to beneficiaries, the beneficiary certificates are issued in the form of a book and most transactions are made to beneficiaries.

(2) Grounds for the existence of beneficiary certificate savings

The reason why the beneficiary certificate savings is utilized is that (A) from the perspective of the beneficiary, it is difficult for the beneficiary to form a distribution market with an unlimited-amount securities relationship with the purpose of paying an uncertain amount (which is not a certain amount) amount, not a certain amount. Therefore, the only means to guarantee the redemption of beneficiary certificates does not need to be actually delivered the beneficiary certificate unless there is any exercise of the right to claim redemption against the truster company. Furthermore, according to the beneficiary certificate savings, the beneficiary certificate savings can prevent the risk of loss or theft of beneficiary certificates necessary for the transfer of the right to benefit, etc., and (b) from the perspective of the truster company, the trust company can avoid the procedural prosperity from issuing beneficiary certificates in the form of the certificate and save the issue cost, and avoid the complicated problem that may arise from the loss of beneficiary certificates (e.g., the assertion of bona fide acquisition). In addition, when the transaction of beneficiary certificates is made in the form of savings, it is reasonable to increase the sale of beneficiary certificates in accordance with the demand of various types of savings such as discretionary, objective, and installment.

(3) Restrictions on transfer of beneficiary certificate savings

In principle, the right to benefit divided in the securities investment trust can be transferred with the beneficiary certificates (Article 6(3) of the Investment Trust Business Act), but as seen above, it is difficult to form the distribution market due to the non-par-value securities relationship, and the beneficiary can recover the investment money by exercising the right to claim the redemption against the truster company. Therefore, it is not profitable to allow the transfer of beneficiary certificates in open-end investment trust (the so-called "open investment trust allowed to repurchase beneficiary certificates") which is allowed to be redeemed.

In fact, in the case of open-type subscription, it is general for the truster company to issue the beneficiary certificate savings account in lieu of the beneficiary certificate and to prevent transfer of the account itself without the approval of the truster company, thereby restricting the transfer of beneficiary certificates. Accordingly, as recognized above, each beneficiary certificate savings account shall not be transferred without the approval of the truster company (in particular, if the beneficiary certificate savings can be transferred freely from the beneficiary certificate savings, the beneficiary can achieve the same purpose (the recovery of investment money) as the redemption of beneficiary certificates without the redemption fee, so it may be excessively favorable to the beneficiary).

Therefore, the restriction on the transfer of the savings account in the above beneficiary certificate savings terms and conditions shall be deemed to be the restriction on the transfer of the beneficiary certificate, and the beneficiary may exercise the right to repurchase against the truster company (in the case of profit securities savings, the right to repurchase shall be exercised in the form of a claim for withdrawal of the savings property) and thus, even if the transfer of the beneficiary certificate in the beneficiary certificate savings is restricted, the exercise of the right by the beneficiary (the beneficiary) shall not be unreasonably restricted (* in relation to this, the plaintiff asserts that the transfer of the beneficiary certificate savings account and the transfer of the right under the beneficiary certificate savings contract shall be separate. However, it is difficult to easily present the case where only the right under the beneficiary certificate savings contract is transferred without the savings account, and the transfer of the savings account is restricted, and it is merely a different expression that the transfer of the right under the beneficiary certificate savings contract is restricted. Therefore, the plaintiff'

D. The validity of the right transfer agreement under each beneficiary certificate savings contract of this case

(1) As to the validity of the right transfer agreement under each of the above beneficiary certificate savings contracts against the Plaintiff of the Dae-dong Bank in this case, the Dae-dong Bank and the Defendants agreed to not transfer each of the above beneficiary certificate savings accounts (i.e., the right under the beneficiary certificate savings contract) without the Defendants’ approval when entering into each of the above beneficiary certificate savings contracts. The Plaintiff, as a financial institution, knew or could have known the above provision on the restriction on transfer of beneficiary certificate savings under the beneficiary certificate savings contract (in particular, the Plaintiff, a financial institution, was aware or could have known of the provision on the restriction on transfer of beneficiary certificate savings under the above savings contract, considering the whole purport of the argument in each of the above evidence No. 6 and No. 7, it is reasonable to view that the Plaintiff, a financial institution, was aware or could have known of the above restriction on transfer of beneficiary certificate savings under the beneficiary certificate savings contract). Thus, even if the Dae-dong Bank agreed to transfer the rights under each of the above beneficiary certificate savings contracts to the Plaintiff according to the decision on transfer of contracts in this case.

(ii)to examine, specifically, whether each beneficiary certificate savings contract has the effect of transferring rights due to the division, specifically, as follows:

(a)in the case of the business stabilization savings plan and

The plaintiff argued that the defendants approved the transfer of each savings account, but there is no evidence to acknowledge it in the case of the business stabilization savings contract and the above two savings contracts. Rather, it is recognized as above that the account holder's name under the above two savings contracts still consists of a large bank. The defendants did not approve the transfer of rights under the above two savings contracts. Thus, the above two savings contracts' rights cannot be deemed to have been transferred to the plaintiff (i.e., the rights belonging to the bankruptcy foundation of the large bank).

Therefore, the part of each of the claims in this case against the Defendants is without merit, which is premised on the transfer of the above rights to the Plaintiff under the contract.

(b) In the case of a corporate development plan:

On the other hand, since the fact that Defendant Qina changed the name of an account holder of a corporate development savings contract as of March 31, 199 to the Plaintiff as of March 31, 199 is the same as recognized above, Defendant Qina shall be deemed to have approved the transfer of rights under the savings contract [Provided, That the approval shall be deemed to have reserved the objection of offset, referring to the "content of notification" as stated in paragraph (h) (2) of the above 1-h), so it is reasonable to view that the right under the savings contract of corporate development has been transferred to the Plaintiff on March 31, 199.

In addition, according to the above facts, the obligation to be borne by the Plaintiff under the contract of corporate development savings is the obligation to pay deposits (i.e., the obligation to pay the balance of beneficiary certificates in the savings account at the time when the Plaintiff requested withdrawal of savings assets) or the obligation to deliver beneficiary certificates, and its choice should be deemed to be the Plaintiff (see Article 1-e (5) of the above Act). The obligation of the Defendant Contributor, which was in an unspecified state, was specified as the obligation to pay deposits by exercising the right of choice (i.e., the exercise of the right of repurchase) due to the Plaintiff’s lawsuit in this case. Thus, barring any special circumstance, the Defendant Contributor is liable to pay the Plaintiff a deposit (i.e., the appraised balance of beneficiary certificates stored in the savings account) under the contract of corporate development savings (hereinafter “the obligation to pay deposits in this case”).

3. Determination as to the defense against set-off by the defendant M20

A. The parties' assertion

(1) A defense to the effect that the service of a preparatory document dated October 13, 1999 by the delivery of each of the above corporate bond guarantee claims against the Defendant Plue Bank (hereinafter referred to as the “Plue Bank”) against the Defendant Plue Bank (hereinafter referred to as the “Plue Bank”), which it holds against Dlue Bank (hereinafter referred to as the “Plue Bank”), shall be offset against the amount equal to the payment obligations of the instant deposits.

(1) The court below's decision to set off a set-off intention cannot be viewed as a conclusive expression of the intention of set-off, and there is no other evidence to deem that the defendant M&A clearly expressed his intention of set-off intention around March 16, 199, on the ground that the defendant M&A expressed his intention to set-off each of the above corporate bond guarantee claims to the trustee in bankruptcy of the Daedong Bank as an automatic bond. However, upon examining the entries in the Eul evidence No. 1, which seems consistent with this, the content of the evidence No. 1 is that "if it was made on March 31, 199, it is expected that the above set-off will be made."

(2) The Plaintiff asserted that the above set-off defense by Defendant Qinan had been asserted as follows.

(a)each of the above debentures belongs to the investment trust property, and the investment trust property is legally reverted to the trustee company, and the creditors of each of the above debentures cannot be deemed to be Defendant Investment, the trustee company, and the management company, and thus Defendant Investment cannot offset the above debentures with the payment obligations of the deposits of this case [the holders of each of the above debentures 1: the holders to whom each of the above debentures belongs];

(B)A company, even if the Plaintiff is a creditor of each of the above corporate bonds, the rights that the Plaintiff acquired from the Daedong Bank (in particular, at the time of its transfer) are claims for return of beneficiary certificates, and each of the above corporate bonds guaranteed by the Defendant Jin, as monetary claims, may not be offset against each of the above bonds, since both of the bonds are monetary claims with the same kind.

(c)As at the time when the plaintiff was transferred the rights under the enterprise development savings contract from the Daedong Bank, each of the above corporate bonds guaranteed bonds and obligations under the enterprise development savings contract, which was not due respectively, shall not be set off against each of the above two claims (as at issue 3: due date for the bilateral bonds).

(D) According to Article 17(4) of the Investment Trust Business Act, a claim against a management company against the management company shall not be offset against a claim that belongs to the trust property of the management company. Thus, each of the above corporate bonds which belong to the trust property of the management company (Defendant investment) and the claims for the payment of the deposits of this case, which are claims against the management company, cannot be offset against each other. [The issue 4: Whether the offsetting under the Investment Trust Business Act

(e)Finally, Article 20 of the Trust Act provides that the claims belonging to the trust property and the obligations not belonging to the trust property shall not be offset. In the case of a securities investment trust, there is a trust relationship between the beneficiary and the truster company, and set-off is not allowed unless each of the above corporate bond guarantee obligations of the lending bank belongs to the investment trust property established by the corporate development investment trust contract (this issue is whether set-off is prohibited under the Trust Act)

(3)In the following, I will examine the possibility of the admission of set-off claimed by Defendant Quatu by issues:

(b) The holders of each of the above corporate bonds (this point is one in dispute);

(1)The Securities Investment Trust in the Investment Trust Business Act means a trust company specialized in the investment and management of securities, etc., in order to facilitate investors' investment in securities, etc. by distributing the risk that investors will incur from direct investment in securities, etc., and forms funds, etc. from investors, and then entrusting the trustee company with the custody of the above trust property, and allowing the trustee company to make investments and management of the securities, etc., such as stocks and debentures, and allowing the trustee company to acquire the right to benefit therefrom (see Article 2(1) of the Investment Trust Business Act).

(2)In such securities investment trust, the truster company shall be responsible for the management of the trust property as a good manager (Article 17(1) of the same Act), ② the trustee company shall specify the fact that the trust property is a trust property in the custody of the trust property, and the name of the truster company entrusted with the custody thereof (Article 17(5) of the same Act), ③ shall invest and operate the trust property (Article 18 of the same Act), and shall give the trustee company instructions necessary for the acquisition, sale, etc. of the securities (Article 24 of the same Act), ④ shall exercise all rights, such as voting rights, etc. with respect to the securities which are trust property (Article 25(1) of the same Act), ⑤ shall be responsible for preparing and providing a business report and business report on the trust property, and a report on the operation of trust property (Article 26(1) of the same Act, Article 27(4) of the same Act, and the trustee company shall comply with the instructions of the truster company related to the management of the trust property (Article 24(3) of the same Act).

(3)On the other hand, in practice, the trustee company does not directly enter into a sales contract for the securities, but only the trustee company is in charge of the settlement of the securities trading order with the securities company.

(4)In full view of the significance, management company and trustee company's business affairs and practice, etc. of the securities investment trust as above, it is merely that the truster company that received the investment management trust from investors dealing with the trustee company with only a relatively less important part of its business affairs, and the trustee company's primary obligation is limited to the safekeeping, management and calculation of the trust property. Thus, the trust relationship between the truster company and the trustee company constitutes a passive trust with the main purpose of "storage and management of the trust property". Thus, in the securities investment trust, the trust relationship between the truster company and the trustee company is ultimately different from its nature in the trust law with the trustee's right to dispose of the trust property.

[* A trustee company has the right to withdraw, modify, or demand correction of a trust management instruction in violation of the laws and regulations of the truster company or the terms and conditions of the trust (Article 41(1) of the same Act), which is to protect the beneficiary by preventing the arbitrary operation of the trust property of the truster company, and does not change the nature of the trust relationship alone).

(5) Accordingly, even if the trustee company is a creditor in the name of each of the above bonds, the trustee company is obligated to comply with the management instructions of the truster company for each of the above bonds, so the actual right holder for each of the above bonds shall be the defendant investment company, which is the truster company (Seoul Bank), to offset the above bonds with the payment obligations of this case with the payment obligations of this case as the payment obligations of each of the above bonds is aimed at protecting the trust property by preventing the insolvency of the trust property belonging to each of the above bonds, and therefore, the trustee company cannot refuse the payment orders of the above offset. In light of this point, since the trustee company is a creditor in the name of each of the above bonds, the trustee company bears the obligation to comply with the management instructions of the truster company for each of the above bonds, the actual right holder for each of the above bonds shall be the defendant investment company (or, as seen below, to offset the payment obligations of this case with the payment obligations of this case with the payment obligations of each of the above bonds.

Article 17 (4) of the Investment Trust Business Act provides that "A claim against a truster company shall not be offset against the claim of the truster company which belongs to the trust property of the truster company." This provision is premised on the premise that the truster company's claim belonging to the trust property (creditors) is the truster company. This is because, as alleged by the plaintiff, the above provision is interpreted as "a claim against the truster company (i.e., the truster company's obligation) cannot be offset against the trustee company's claim."

(c) Whether the bonds are of the same nature (in dispute 2);

As determined above, the plaintiff was transferred on March 31, 199 to the rights under the enterprise development savings contract held by the Daedong Bank, and as such, it should be seen that the plaintiff is identical to the rights transferred to it and each of the above corporate bonds guaranteed by it.

(1) The beneficiary's rights in the securities investment trust

In the securities investment trust, the beneficiary who purchased and holds beneficiary certificates from the truster company has several rights against the truster company, and the most essential right among them is the right to claim for redemption of beneficiary certificates and repayment etc.

However, if a beneficiary files a claim for redemption of beneficiary certificates, the truster company bears the obligation to pay cash converted into the base price on the business day following the date of the claim for redemption. Thus, the right to claim redemption of beneficiary certificates can be seen as a monetary claim for the purpose of payment of money, and it is clear that the right to claim redemption, etc. is a monetary claim. Thus, the right held by the beneficiary against the truster company is a monetary claim in essence.

(2) The rights of the account holder in beneficiary certificate savings

On the other hand, the actual securities investment trust transaction is not a form in which the beneficiary purchases and holds beneficiary certificates directly from the truster company as if the beneficiary is scheduled to do so, but a truster company has purchased the beneficiary certificates with the deposit and most transactions are conducted in the form of keeping and managing them in the savings account. In this case, in the beneficiary certificate savings, the account holder has the option claim, such as the right to claim the payment of deposit or the right to claim the delivery of beneficiary certificates (see the above 1-Ma (5)) against the truster company (see the above 1-Ma (5)), and the right to request the delivery of beneficiary certificates is derived from the unique nature of the beneficiary certificate savings in which the account holder keeps beneficiary certificates to the truster company.

However, since it is difficult for an account holder to form a distribution market in which beneficiary certificates are intangible securities, even if he/she actually received beneficiary certificates from the management company, it is ultimately that there is no particular way except for claiming redemption from the management company in order to realize such beneficiary certificates, and even if the account holder demands the management company to redeem beneficiary certificates, there is room to view that there is a special circumstance in the management company (such as this case, it is also a special circumstance that the management company may refuse to exercise the right of offset against the account holder). Thus, the right to request the delivery of beneficiary certificates is merely an incidental right of the account holder. Thus, even in the beneficiary certificate savings, the rights of the account holder against the management company should be considered as a monetary claim in essence.

(3) Therefore, it is difficult to accept the Plaintiff’s assertion that, as the Plaintiff’s right to receive a transfer from the Dong bank is a claim for return of beneficiary certificates for the purpose of a different type from each other’s corporate bond bond, set-off cannot be allowed.

(4)In addition, the plaintiff was transferred from Dong Dong bank the selective claim called the right to claim the payment of deposits or the right to claim the return of beneficiary certificates (i.e., the right to claim the return of beneficiary certificates is not transferred from Dong bank as alleged by the plaintiff), and in order to meet the obligation with the selective claim, it must be changed to simple bonds through ‘specific', and its specific purpose is mainly made by ‘the selection', and the effect of the choice becomes effective retroactively at the time of the occurrence of the claim (i.e., the claim was established for the benefit selected from the time of the occurrence of the claim). As seen above, the plaintiff specified the selective claim transferred from Dong bank as the right to claim the payment of deposits and the effect of the choice becomes effective retroactively from the time of the occurrence of the claim (i.e., when the Dong bank enters into the enterprise development contract). Thus, the plaintiff's assertion that the plaintiff had received the right to claim the return of beneficiary certificates from Dong bank, which is the right to claim the payment of deposit from Dong bank, is without merit.

(5) Ghana, even if the Plaintiff assumed that the Plaintiff’s rights under the enterprise development savings contract were transferred from the Daedong Bank at the time of transfer ( March 31, 199) and each of the above corporate bonds guaranteed bonds were bonds with different objectives, the Plaintiff’s exercise of option following the transfer (transfer) and thereafter the Plaintiff’s exercise of right to demand payment of deposits (the Plaintiff has a monetary claim as the claim for payment of deposits) ultimately led to the same purpose. In addition, each of the above corporate bonds guaranteed claims has reached the due date ( October 23, 1998, which lost the benefit of time due to the bankruptcy of the Daedong Bank), and thus, it is reasonable to view that both claims may be offset (see Supreme Court Decisions 82Meu200, Jun. 22, 1982; 86Meu27696, Jul. 7, 1987; 296Da16696, Jul. 16, 1966, etc.).

(d) Deadline for repayment of both claims (point 3);

The plaintiff asserts to the effect that the above two claims shall not be offset, since each of the above corporate bonds guaranteed bonds and corporate development savings contracts by the defendant Plue Investment was not due at the time of transfer of the rights under the corporate development savings contract by the company Plue Bank.

In light of the above, (1) the Plaintiff’s right to a business development savings contract was transferred from the Daedong Bank (as of March 31, 199), and as seen above, it was immediately considered that each of the above corporate bond guarantee claims of Defendant Dae Investment had already arrived at the maturity date. (2) Even if the debt (i.e., debt) pursuant to the corporate development savings contract of Defendant Dae Investment at the time of the transfer of the above right did not reach the maturity date, set off each of the above corporate bond guarantee claims (i.e., debt) is allowed as long as each of the above corporate bond guarantee claims (i., debt) has already reached the maturity date (see, e.g., Supreme Court precedents cited above).

[* In relation to this, according to the beneficiary certificate savings agreement, if a beneficiary fails to make a withdrawal of a savings asset despite the expiration of the savings period, the savings period shall be deemed to continue until the withdrawal request is made. Thus, the truster company (Defendant investment) is deemed to have no authority to enforce the redemption of the beneficiary certificate, and it is not in the nature that the defendant investment voluntarily renounces the benefit of time and is able to repay its obligations under the enterprise development savings contract, and thus, the legal principles set forth in the above (2) cannot be applied. However, according to the above standardized contract, if it is deemed necessary by the truster company (after the expiration of the deposit period), it is possible to withdraw the relevant savings asset and dispose of it by such method as determined by the company. Meanwhile, since the time when the plaintiff is transferred the right under the corporate development savings agreement from the Daedong Bank ( March 31, 199), it shall be deemed that it can be offset against each of the above guaranteed bonds by withdrawing the savings asset from the above savings account. Thus, the plaintiff's above assertion cannot be accepted).

(e) Whether set-off under the Investment Trust Business Act is prohibited (Dispute 4)

We will examine whether a set-off alleged by Defendant Qins in this case constitutes a set-off prohibited by Article 17(4) of the Investment Trust Business Act.

(1) Although it is also important to actively increase the management of trust property, it is also important to prevent passive reduction or utility of trust property. The Investment Trust Business Act is an institutional device to prevent passive reduction or utility of trust property, and has the following provisions:

(A) A truster company shall be responsible for managing the trust property as a good manager (Article 17(1) of the Investment Trust Business Act).

(B) A truster company shall not, in the case of its own debt, repay it with the trust property (Paragraph 3 of the same Article).

(C) A claim against a truster company shall not be offset against a claim belonging to the trust property of the truster company (Article 4 of the same Act).

(ii)Therefore, Article 17, Section 4 of the Investment Trust Business Act shall be interpreted to the effect that the management company is prevented from offsetting its own debts (or debts belonging to an independent trust property) incurred, regardless of the trust property, with a credit belonging to the trust property, to prevent the reduction or diversion of the trust property;

In other words, if the management company permits a set-off of its own debts (or debts belonging to an independent trust property) incurred regardless of the trust property with a claim belonging to the trust property, a claim belonging to the trust property decreases due to the extinguishment of the trust property, while the trust company's own debts (or debts belonging to an independent trust property) also becomes extinct, and the trust company (or separate trust property, and this is of the same meaning as the whole of beneficiaries who created separate trust property) unfairly enjoys profits arising therefrom. Therefore, it would be the purpose of Article 17 (4) of the Investment Trust Business Act to accomplish the "Principle of Independence of Trust Property" (an independence between trust property and proprietary property, and trust property) by preventing such a result.

(3)However, an offset asserted in this case by Defendant Q2, however, is aimed at preventing the reduction of trust property by offsetting the beneficiary certificate savings-prohibited debt (the payment debt of this case, which is not a debt incurred due to the management of trust property, and it cannot be deemed a debt belonging to an independent trust property, since it is not a debt arising from the management of trust property) with an insolvent bond (each debt guaranteed by the above company) in the status of trust property belonging to the trust property. It cannot be deemed an offset prohibited by Article 17(4) of the Investment Trust Business Act.

This is because, through the above-off, Defendant P2 is exempted from the obligation to pay in cash for the beneficiary certificate savings-prohibited debt (the obligation to pay the deposits of this case) that is paid according to the performance of separate trust property through the above-off, and intends to protect trust property rather than by preventing the insolvency of the trust property by incorporating the cash to the trust property account to which each of the above corporate bonds belongs, and even if such offsetting is permitted, the obligation belonging to the separate trust property is not extinguished [the extinction is the beneficiary certificate savings-prohibited debt for the specific beneficiary (the change from the bank to the plaintiff) that is paid according to the performance of separate trust property.] The beneficiary who created separate trust property does not unfairly enjoy profits from the above-mentioned set-off. [The above set-off is the view that if such set-off is permitted, the truster company (Defendant P2) can not be deemed to enjoy unfair profits from its own extinction regardless of its own trust property, and as seen above, the trust company (Defendant P2) can not be deemed to belong to each of the above-mentioned trust property bonds.

(4)On the other hand, in light of the specific beneficiary (the change from the bank to the plaintiff) who is the creditor of the passive bonds extinguished by the offset claimed in this case, even if he did not receive the beneficiary certificate savings bonds in cash, his obligation to his management company (the above debt guarantee obligation) due to such offset is extinguished on an equal amount, so it does not eventually result in any loss due to such offset.

(5)Naiana, as in this case, where a specific beneficiary has a deposit payment claim or beneficiary certificate delivery claim under the savings contract by making a contribution to the management company and concluding the beneficiary certificate savings contract, while the management company also (as part of the management of trust property created by a separate investment trust contract) has a claim against the above specific beneficiary (as part of the management of trust property), if the management company fails to offset the claim against the above specific beneficiary with the payment obligation of deposits against the above specific beneficiary, the relevant specific beneficiary, which is not sufficient for its financial capability due to being declared bankrupt, obtains real benefits equivalent to the collection amount by collecting the deposit payment claim, but on the other hand, the trust property that belongs to the claim against the above specific beneficiary, has reduced its value due to the decrease of its value from the above specific beneficiary (i.e., the trust property becomes insolvent) to the extent that the whole beneficiary who created the trust property has no choice but to bear damages to that degree, thereby hindering the management company's efforts as a good manager to fulfill its duty of trust property by preventing damage to the entire beneficiary who created the trust property.

(6)In conclusion, even in any respect, set-off asserted by Defendant Q2 in this case is not contrary to the principle of independence of trust property, so it cannot be deemed as a set-off prohibited by Article 17, Section 4, of the Investment Trust Business Act.

(f) Whether set-off is prohibited under the Trust Act (in dispute No. 5);

As to whether a set-off alleged in this case constitutes a set-off prohibited under Article 20 of the Trust Act, Article 20 of the Trust Act is also a provision to accomplish the principle of independence of trust property by preventing unfair reduction or usefulness of trust property. Article 17(4) of the Trust Act is a special law of the Trust Act, and the Investment Trust Business Act amends Article 20 of the Trust Business Act in line with the structure of the trust relationship under the Trust Business Act. Thus, if the set-off alleged in this case does not constitute a set-off prohibited under Article 17(4) of the Trust Act, this does not immediately constitute a set-off prohibited under Article 20 of the Trust Act.

G. Sub-committee

In summary, as the defendant U.S. reserved an objection to offset in approving the transfer of rights under the business development savings contract against the plaintiff, the defendant U.S. has been able to oppose the plaintiff by offsetting each of the above corporate bond guarantee claims against the Daedong Bank (transferr) that came into existence before the transfer of rights, which came into existence before the due date, and the defendant U.S. expressed its intent of offset as above to the plaintiff around October 14, 199 (see the above paragraph 1-1-2 of the same Article). Further, as determined above, that both claims are all preserved at the time of the expression of intent of offset (i.e., the claim between the parties against whom both claims are in conflict, with the same purpose (o.e., the dispute) and both claims are due (o., the dispute) and permissible (o.e., the dispute).

Therefore, the Plaintiff’s claim for payment of deposits of this case and the claim for payment of each of the above bonds guaranteed by Defendant Blue shall be deemed to have extinguished on July 20, 1999 (the period of repayment of several bonds whose payment period has late, and the delivery date of a copy of the complaint of this case) which is the time of the occurrence of set-off according to the Defendant Blue’s expression of intent of set-off, and the claim for payment of deposits of this case and the claim for payment of each of the above bonds guaranteed by Defendant Blue shall be deemed to have been extinguished on the equal amount. Therefore, the above set-off objection against Defendant B

4. Conclusion

Thus, each of the claims against the defendants of this case against the plaintiff is dismissed as it is without merit.

Judges Kim Jong-hee (Presiding Judge) and Cho Jong-hee