[2] The case holding that a management plan of an investment trust prepared by a truster company and delivered to a customer through a selling company cannot be deemed binding on a truster company because it becomes a content of an individual agreement between a truster company and a beneficiary in light of the purpose, name, form, content, etc. of the preparation

[3] Details of the duty to protect investors borne by a truster company that entered into a sales consignment agreement with a selling company in a securities investment trust

[4] The case holding that where a trust company of a securities investment trust delivers to a customer an investment trust operation plan, which stated different terms and conditions as to the investment grade of commercial papers, to provide the customer with wrong information, it is held that it is liable to compensate for damages caused by the loss to the customer if the customer was damaged by putting the customer trust and

[2] The case holding that a management plan of an investment trust prepared by a truster company and delivered to a customer through a selling company cannot be deemed binding on a truster company because it becomes a content of an individual agreement between a truster company and a beneficiary in light of the purpose, name, form, content, etc. of the preparation

[3] Even in cases where a truster company does not directly take charge of sales of beneficiary certificates by concluding a sales consignment agreement with a selling company, a truster company and an operator of an investment trust is a party having a direct interest in the sale of beneficiary certificates, and a truster company, which has established a securities investment trust agreement with a trustee company after obtaining prior approval from the Financial Supervisory Commission, shall establish a securities investment trust agreement jointly with the trustee company, prepare an investment trust explanatory note, and provide the person who intends to acquire beneficiary certificates. After the establishment of an investment trust, it shall make decisions and instructions on the investment and management of trust properties after the establishment of the investment trust, and shall be held responsible for the management of trust assets as a good manager pursuant to Article 17(1) of the former Securities Investment Trust Business Act (repealed by Article 2 of Addenda to Act No. 6987 of the Indirect Investment Asset Management Business Act, No. 6987), and shall protect beneficiaries’ interests. Thus, the truster and operator of the investment trust has a duty of care to consider and protect investors so that investors can make reasonable investment decisions based on the relevant information. Where all investors are aware of the investment risk or risk of an investment risk.

[4] The case holding that in a securities investment trust where a truster company provided a customer with wrong information by issuing an investment trust operation plan, different from the terms and conditions, for commercial papers investment rating through a selling company, the customer, provided an important reason for not creating accurate awareness of the risks associated with the purchase of beneficiary certificates or the details of the investment, thereby making it impossible for the customer to make a reasonable investment decision based on accurate information, it is necessary to purchase commercial papers above a certain level specified in the management plan as possible in order to protect the customer who made an investment in trust and made an investment; and if there is no special circumstance or reasonable circumstance, if damage was incurred by the customer’s trust and other operation, the customer is liable to compensate for such damage for the protection of investors

1. Binding force of an operation plan;

Where a securities investment trust issues an investment trust operating plan different from the terms and conditions to investors (hereinafter referred to as “investors”), whether the contents of the investment trust operating plan are binding as an individual agreement shall be determined reasonably in accordance with logical and empirical rules by comprehensively taking into account the contents of the investment trust operating plan, the motive and background of the delivery of such documents, the party’s genuine intent, etc.

In light of the purpose, name, form, and content of the instant management plan and the facts cited in its judgment, the court below acknowledged the facts as stated in its judgment, and found it as a document prepared in order to make the instant management plan used as reference material for investor solicitation, and it is not clear that the contents of the plan are limited to corporate bonds and commercial papers of a certain class or higher, but merely presented an expected return rate at the time of preparation and provided an exemplary explanation that the plan should be incorporated into corporate bonds and commercial papers of a certain class or higher as a basis for calculating such expected return rate. Thus, in light of the aforementioned preparation purpose, name, form, and content, etc., the instant management plan is not merely a document that indicates the plan for fund management in the future based on all economic circumstances anticipated at the time of preparation. Thus, even if it was delivered to the Plaintiff, who is a beneficiary through an investment trust, the defendant (mutual name was transferred from an investment trust Co.,, Ltd., Ltd., and re-transfer to an investment trust) and the beneficiary, it cannot be viewed as unlawful in the misapprehension of legal principles or the grounds for appeal.

2. Protection of investors by a truster company;

A securities investment trust is an indirect securities investment scheme for the general public, under which an investor is bound to bear risks, as a matter of principle, due to changes in the yield of securities due to the type of securities or the timing, method, etc. of sale and purchase of such securities. However, the premise that accurate information about the composition of an investment trust, subject matter of investment, importance of investment, etc., which is an important matter of risk burden, should be provided and that investors’ decision on investment should be made appropriate. Even in cases where a trust company does not directly take charge of sales of beneficiary certificates by entering into a sales consignment agreement with a seller, a truster company, who is the founder and operator of an investment trust, is a party directly interested in the sale of beneficiary certificates, and has established an investment trust agreement with the trustee company in advance after obtaining approval from the Financial Supervisory Commission, and provides the person who is to acquire the beneficiary certificates with an investment trust manual, and thereafter, should be able to take reasonable consideration of the circumstances surrounding the investment trust’s establishment and management of the trust property and the risk of investors’ investment risk by providing the relevant investor with accurate information.

원심판결 이유에 의하면, 피고는 증권투자신탁 운용업무 등을 목적으로 구 투신업법에 의하여 설립된 회사로서, 한빛중기공사채 투자신탁 제1호(이하 ‘중기1호 펀드’라 한다)와 한빛장기공사채 투자신탁 제1호(이하 ‘장기1호 펀드’라 한다)를 설정하여 그 수익증권을 발행한 자이고, 삼성증권은 피고와의 위탁판매계약에 따라 위 중기1호 펀드 및 장기1호 펀드 수익증권의 판매업무를 담당한 회사이며, 원고는 삼성증권으로부터 위 중기1호 펀드 및 장기1호 펀드 수익증권을 매수한 투자자인 사실, 삼성증권은 1999. 5. 초순경 원고에게 피고가 채권형·시가평가형으로서 최초로 설정, 발매하는 위 중기1호 펀드 및 장기1호 펀드 수익증권의 매수를 권유하였는데, 통상 1호 펀드의 경우 그 수익률이 좋다고 하면서, 1999. 5. 13.경 원고에게 피고로부터 제공받은 ‘한빛중기공사채 투자신탁운용계획’이라는 문건을 교부하면서 그 내용을 설명하였으며, 장기1호 펀드의 경우에도 운용기간만 다를 뿐 나머지는 위 문건에 기재되어 있는 내용과 같다고 설명하여 준 사실, 이 사건 운용계획서에는 ① 상품개요라는 제목하에 상품유형은 추가형이고, 채권편입비율은 50% 이상이며, 투자자산의 평가방식은 채권의 경우 시가평가로, 유동성자산의 경우 장부가평가로 한다는 내용, ② 금리전망 및 운용계획이라는 제목하에 금리전망은 ‘99년은 회사채금리 연 7 ~ 8.9%의 박스권에서 소폭 등락 예상되나 금리상승 가능성은 상당기간 지연될 전망’이고, ‘Trading을 통한 수익률 제고방안 강구’, ‘국공채 및 우량회사채 위주 운용’, ‘일정 부분 유동성자산 편입으로 최저수익률 확보’ 등의 내용, ③ 예상수익률이라는 제목하에 연 7.2% 내지 12.9%로 제시하면서 그 산출 근거로서 펀드구성(Trading과 Buy＆Hold), 투자대상(국공채, 회사채, 기업어음 등), 투자비중을 기재하였는데, 펀드구성 중 Trading에 국공채, BBB+등급 이상의 회사채, A0등급 이상의 금융기관채를 대상으로 80%를 투자하고, Buy＆Hold에 A3-등급 이상의 기업어음(CP), CD, 정기예금, 발행어음을 대상으로 20%를 투자하면 예상수익률이 최저 7.29%, 최고 12.91%로 계산된다는 내용이 기재되어 있는 사실, 한편 위 각 펀드에 적용되는 약관 제20조에는 투자신탁재산의 운용이라는 제목하에, 위탁회사는 투자신탁재산을 채권, 유동성자산 및 수익증권, 파생상품 등에 투자하여 운용하되, 채권 중 사모사채의 경우에는 신용평가전문기관의 평가등급이 A등급 이상인 것에 투자한다는 제한을 두고 있을 뿐, 그 외의 투자상품에 관하여는 신용평가등급에 따른 제한을 둔다는 내용이 전혀 없고, 그 밖의 조항에서도 이에 관한 규정이 없는 사실, 원고는 삼성증권의 위와 같은 권유에 따라 1999. 5. 20. 피고가 설정한 중기1호 펀드의 수익증권 19,997,000,450좌를 200억 원에 매수하였고, 1999. 6. 14. 피고가 설정한 장기1호 펀드의 수익증권 200억 좌를 200억 원에 매수한 사실, 그 후 피고는 중기1호 펀드와 장기1호 펀드를 운용하면서 펀드의 설정초기에는 대우그룹 계열회사들의 기업어음을 위 각 펀드에 편입시키지 않았으나, 중기1호 펀드에는 1999. 7. 15. 대우중공업 주식회사의 기업어음 2,967,780,821원 상당, 대우할부금융 주식회사의 기업어음 1,873,567,609원 상당, 1999. 7. 16. 주식회사 대우의 기업어음 1,971,791,775원 상당을 편입시키고, 장기1호 펀드에는 1999. 7. 15. 대우중공업 주식회사의 기업어음 1,978,520,547원 상당을 취득하여 편입시킨 사실, 그런데 대우그룹의 자금상태는 1999. 4.경부터 급격히 악화되어 대우그룹 계열회사들의 기업어음에 대한 신용등급은 위 편입일 이전부터 일제히 하향조정되었는데, 주식회사 대우가 1999. 5. 4. A3-등급에서 B등급으로, 대우중공업이 1999. 5. 21. A3-등급에서 B+등급으로, 대우할부금융이 1999. 5. 31. A3-등급에서 B+등급으로 모두 하향조정되었던 사실, 원고는 1999. 8. 12.자 대우그룹 채권에 대한 환매를 제한하는 위 수익증권 환매연기조치에 따라 중기1호 펀드와 장기1호 펀드에 편입된 대우그룹 기업어음 부분에 대한 수익증권의 환매를 하지 못하다가, 중기1호 펀드의 만기일인 1999. 11. 16.과 장기1호 펀드의 만기일인 2000. 6. 14.을 지나 2000. 7. 28.에 이르러서야 중기1호 펀드에 관하여 2,582,648,122원, 장기1호 펀드에 관하여 1,348,045,900원, 합계 3,930,694,022원의 상환금을 지급받은 사실을 알 수 있다.

The instant management plan, as seen earlier, is a document prepared to be used as data for soliciting investors. However, the expected profit rate, which is an important factor in determining whether to make an investment, and the formation of the fund, which is an investment target (Tradling and Bu&H), investment target (State public bonds, corporate bonds, corporate bills, etc.), and investment expenditure, are stated in detail as investment target of the said fund formation, and the terms and conditions do not include any restrictions on credit rating for corporate bills subject to investment, but do not contain any proper disclosure of such circumstances. Thus, the Plaintiff, an investor, despite the absence of special circumstances, was able to make an investment in the instant fund management plan, trust or expectation that the Defendant would decrease the investment target level beyond a certain level as the basis for calculating an earning rate, and that there is no need to provide the Plaintiff with reasonable information on corporate bills, other than the Plaintiff’s terms and conditions, in order to protect the Plaintiff’s investor’s investment risk by providing the Plaintiff with false information on corporate bills and other reasonable investment risk.

According to the reasoning of the judgment below, it is revealed that the corporate bills of Daewoo Motor Sales Co., Ltd. were originally incorporated into the fund of 1st on April 28, 199, and were re- incorporated on July 28, 199, the maturity of which was extended, and the credit rating of Daewoo Motor Sales Co., Ltd. was adjusted to Grade A3-B from May 31, 199, after the Plaintiff purchased the mid-term Fund of 1st to Grade B. As seen above, rather than the extension of maturity, the corporate bills of less than a certain grade specified in the management plan of this case were newly incorporated into the fund of this case. The Defendant is liable for damages.

Nevertheless, the court below held that, unlike this, it is difficult to view that the plaintiff belonging to a credit specialized financial institution was not aware of the existence or content of the terms and conditions or the investment trust description applicable to the fund of this case when purchasing beneficiary certificates, and that the plaintiff as the plaintiff did not recognize the binding force on the technology related to the investment object in light of the form and content of the above management plan. Since it was not specifically confirmed by the defendant as stated in the above management plan, it is difficult to recognize that the defendant is liable for damages due to violation of the duty to protect investors at the time of entering into an investment. In so doing, the court below erred by misapprehending the legal principles on the trust company's duty to protect investors, and it is obvious that such violation affected the judgment. The plaintiff's ground of appeal

3. Conclusion

Therefore, the lower judgment is reversed, and 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 on the bench.

Justices Kim Hwang-sik (Presiding Justice)