[2] The method of assessing the victim's negligence in a case where the ratio of negligence to each joint tortfeasor is different in the comparative negligence as to joint tort liability

Where a victim is negligent in causing or expanding damage in a tort compensation case, it must be taken into account as a matter of course in determining the scope of liability for damages. However, fact-finding or determining the ratio of comparative negligence is within the exclusive authority of a fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decisions 2002Da43165, Nov. 26, 2002; 2010Da101752, Jul. 28, 2011).

According to the reasoning of the judgment below, the court below acknowledged the ratio of negligence of the plaintiffs to 60%, 70%, and 80%, respectively, and recognized the ratio of liability of the defendants to 40%, 30%, and 20% respectively. The court below's finding of facts as to the grounds for offsetting negligence or its ratio to the extent acceptable and it cannot be deemed as considerably unreasonable in light of the principle of equity. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles as to comparative negligence and limitation of liability, etc., which affected the conclusion of the judgment by failing to exhaust all necessary deliberations

2. We examine the grounds of appeal by Defendant Korea Investment Securities Co., Ltd. (hereinafter “Defendant Korea Securities”)

A. Regarding ground of appeal No. 1

1) The distribution company provided for 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 for the sale of beneficiary certificates, but is in the position of soliciting investors in its own name and selling beneficiary certificates to investors. Such distribution company, which lacks experience, interferes with an investor’s right perception of risks inevitably accompanying an inevitable transaction with an excessive risk in light of its customer’s investment situation, and causes damages to investors by violating its duty to protect investors by actively soliciting transactions with excessive risk. It is sufficient that the distribution company provided an asset management company with investment prospectus to investors for the sale of beneficiary certificates and explain its major contents, and that it did not provide an asset management company with accurate explanation of the investment prospectus’s performance and/or duty to provide an asset management company’s investment prospectus’s investment risk (see, e.g., Supreme Court Decision 200Da5720, supra).

2) Examining the facts acknowledged by the court below in light of the aforementioned legal principles, each OTC derivatives subject to the principal investment of each of the instant funds is a structural bond issued based on a stock swap (EDS), which is a very small financial term investment company, and the factors leading to determining the possibility of loss of the investment principal, are different from general bonds or bank deposits. The quarterly final revenue with the stock swap premium as major financial resources are also different from ordinary bonds and bank deposits. Thus, it is difficult for investors to know the fact that the characteristics of the quarterly final revenue with the stock swap are different from the ordinary interest rate. Thus, Defendant 1 Korea’s securities, as a selling company, have a duty to protect the Plaintiffs by actively providing accurate information to investors so that investors can make reasonable investment decisions, and explaining the contents of each OTC derivatives investment fund’s subscription to the instant financial investment company, which is an asset management company (hereinafter “Defendant us”), by pointing out the meaning of the credit rates of each of the instant OTC derivatives investment funds’ subscription to each of the instant financial investment companies or by providing them with accurate information, and by comparing them with the risk of each of the instant securities investment fund’s and investment risk.

3) In the same purport, the lower court is justifiable to have determined that Defendant Korean Securities was liable to compensate the Plaintiffs for damages on the ground of tort. 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 free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the seller’s duty to protect investors

B. Regarding ground of appeal No. 2

1) According to the reasoning of the judgment below, the court below calculated the amount of damages of the plaintiffs by deducting the amount calculated by adding the total amount of principal of each of the funds of this case and the amount equivalent to 5% interest per annum from the date of fund subscription to each of the funds of this case and the amount equivalent to 5% per annum from the date of fund subscription to each of the funds of this case to the date of fund subscription to the funds of this case, and the amount equivalent to the interest amount equivalent to 5% per annum from the date of fund subscription to each of the funds of this case was deducted from the amount calculated by deducting the refund for early termination (repaid) and the amount of quarterly final profit (profit distribution) already received by the plaintiffs from the total amount of the principal of each of the funds of this case and the amount equivalent to the interest amount equivalent to 5% per annum from the date of fund subscription to the funds of this case.

In light of the relevant legal principles and records, the court below is just in calculating the amount of damages including 5% per annum on the principal of the plaintiffs' subscription to the fund, and there is no error of law by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the scope of compensation for damages, etc.

2) Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court is justifiable in rejecting the Defendant’s assertion that the amount of interest income tax shall be deducted by 14% and 1.4% resident tax in calculating special damages equivalent to 5% interest per annum on the principal of the fund subscribed as above. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the calculation of damages, or by inconsistency

C. Regarding ground of appeal No. 3

The establishment of a joint tort does not require the common intent or common recognition among the joint tortfeasors, and there is sufficient common common sense of each act objectively, so if any damage was incurred by the related joint act, the liability for such joint tort cannot be exempted. In addition, the liability for joint tort is not individually seeking the damage incurred by each act of each tortfeasor, but pursuing the liability for the joint tort jointly committed by the tortfeasor. Thus, even if the ratio of negligence against each joint tortfeasor of the victim differs on the basis of the victim's negligence, even if the court offsets the amount of negligence, it does not individually evaluate the victim's negligence as the negligence against each joint tortfeasor, and it shall be evaluated as a whole by negligence against all of them (see, e.g., Supreme Court Decisions 2005Da32999, Jun. 14, 2007; 2010Da76368, Jul. 28, 2011).

In the same purport, the court below is just in assessing the plaintiffs' negligence as a joint tortfeasor without individually assessing the plaintiffs' negligence as a joint tortfeasor, as a whole by negligence against the defendant's Korean securities and our operating persons, and there is no error of law that affected the conclusion of the judgment by misapprehending the legal principles on comparative negligence and limitation of liability, as otherwise alleged in the grounds of appeal.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)