Korea Coal Corporation (Law Firm Hannuri, Attorneys Jeong Jong-soo et al., Counsel for the defendant-appellant)

Daewoo Securities Co., Ltd. (Law Firm Sejong, Attorneys O Jong-soo et al., Counsel for the plaintiff-appellant)

November 15, 2007

Seoul Southern District Court Decision 2001Gahap360 Delivered on January 30, 2004

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant jointly and severally with the joint defendant Seoul Investment Trust Operation Co., Ltd. in the first instance court shall pay to the plaintiff 3,81,118,724 won with 6% interest per annum from December 30, 1999 to May 31, 2003, and 20% interest per annum from the next day to the date of full payment.

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Quotation of judgment of the first instance;

이 법원이 설시할 이유는 제1심 판결 이유 “1. 기초사실”의 “나. 8·12 환매연기조치” 중 ⑵항 일부(제1심 판결 이유 제5쪽 7, 8번째 줄) “우선지급금이 최종 정산금액보다 적은 경우에는 그 초과금을 환수하지 않기로 하였다.”를 “우선지급금이 최종 정산금액보다 많은 경우에도 그 초과금을 환수하지 않기로 하였다.”로, “3. 판단”의 “가. 환매대금의 지급의무자” 중 “⑴ 법령 및 약관에 의한 환매청구의 상대방”에 대한 판단의 “㈐항(제1심 판결 이유 제12쪽 8번째 줄부터 13번째 줄까지)” 부분을 아래와 같이 각 바꾸고, 제1심 판결 이유 제25쪽 8번째 줄과 9번째 줄 사이에 “피고는 위 기초사실과 같이 이 사건 투자신탁에 편입된 신탁재산 중 대우캐피탈에 대한 콜채권이 잔존가치율 40%로, 주식회사 신한 발행의 51회 무보증채권이 잔존가치율 21%로 각 상각 처리되었는데, 이 사건 투자신탁에 편입된 신탁재산의 평가금액에서 위 대우캐피탈에 대한 콜채권과 주식회사 신한 발행의 51회 무보증채권이 차지하는 비율이 30.21%에 달함으로써 신탁재산의 기준가격과 순자산가치 사이의 괴리를 가져올 수밖에 없었고 특히 대우캐피탈은 대우그룹 계열법인에 해당하므로 위 채권들을 8·12 환매연기조치에서 환매연기 대상이 되었던 대우채와 그 실질에 있어서 달리 취급할 이유가 없다고 주장하나, 피고 주장의 위 채권들은 8·12 환매연기조치에 의해 환매연기 승인이 이루어진 대우채에 포함되지 않은 것으로 이에 대하여 환매연기의 승인 신청 및 금감위의 환매연기 승인이 이루어지지 않았음이 명백한 이상, 대우채에 관한 8·12 환매연기조치와 같이 적법한 환매연기가 이루어졌다고 할 수 없고, 원고의 1999. 12. 29. 환매청구 이후 이 사건 신탁재산에 편입된 위 채권들이 잔존가치율 40% 내지 21%로 각 상각 처리됨으로써 환매청구 당시의 기준가격이 그 후 상각 처리된 순자산가치를 제대로 반영할 수 없었다고 하여 이를 달리 볼 것도 아니다.”를, 피고의 당심에서의 주장에 대하여 아래 2.항과 같은 판단을 각 추가하는 외에는 제1심 판결 이유 중 해당 부분 기재와 같으므로, 민사소송법 제420조 본문에 의하여 이를 그대로 인용한다.

“㈐ 위와 같은 구 투신업법 및 약관의 규정들에다가, 구 투신업법과 그 시행령의 연혁과 그 변천과정 및 앞서 든 각 증거들과 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정들 즉, 증권투자신탁의 운용자로서의 위탁회사의 업무에는 원래 투자신탁의 설정 및 해지, 신탁재산의 투자 및 운용지시 등의 투자신탁 운용업무와 수익증권의 모집 및 매출, 수익증권의 매각 및 환매 등의 수익증권 판매업무가 모두 포함되어 있었는데, 1995. 8. 11. 실시된 ‘증권산업개편방안’으로 위탁회사의 업무가 투자신탁운용업무와 수익증권판매업무로 이원화되면서, 1996년 이후 신설된 위탁회사에 대하여는 투자신탁 운용업만이 허가되고, 기존 3대 위탁회사도 증권사 전환 및 투자신탁운용을 위한 자회사 설립의 과정을 거침으로써, 현재 활동 중인 위탁회사는 모두 투자신탁 운용업만을 허가받은 투자신탁 운용회사들뿐인 점, 따라서 수익증권 판매업무를 허가받지 못한 위탁회사는 반드시 판매회사와의 수익증권 판매위탁계약이 필요한데 이 사건 수익증권들의 환매에 대하여 적용되는 구 투신업법에 의하면 증권거래법 제2조 제9항 의 규정에 의한 증권회사만이 판매회사가 될 수 있도록 하여 판매회사의 자격을 대규모 자산을 보유한 증권회사로 제한하고 있고( 제2조 제5항 , 제9조 제1항 ), 앞서 본 바와 같이 수익자는 수익증권을 발행한 위탁회사에 이를 현금으로 환매할 것을 청구할 수 있도록 하면서도, 수익자가 판매회사로부터 매입한 수익증권에 대하여는 그 판매회사에 대하여 당해 수익증권의 환매를 청구하도록 하여 판매회사가 위탁회사와 구분되는 ‘환매에 응하여야 할 자’로 예정되어 있는 점, 증권투자신탁의 현실에서도 수익증권의 판매 및 환매업무를 수행하는 판매회사는 수익자와 위탁회사를 연결하여 주는 매개체로서 수익자와 가장 직접적인 접촉을 하며, 신탁재산 혹은 수익자로부터 판매보수와 환매수수료를 직접 지급받고 있는 점, 이 사건 수익증권의 판매업무에 관하여 제1심 공동피고 서울투자신탁운용 주식회사와 피고 사이에 체결된 투자신탁 수익증권 위탁판매 계약서에 의하더라도, 피고는 판매업무를 자기의 책임으로 수행하고 수익자에 대하여는 선량한 관리자로서의 주의의무를 다하여야 하고(위 계약서 제4조 제1항), 서울투자신탁운용 주식회사와는 별개로 독립된 지위에서 수익증권의 판매라는 자신의 영업활동을 할 뿐인 점 등을 종합하여 보면, 피고와 같은 판매회사는 증권투자신탁에 있어서 단순히 위탁회사의 대리인에 불과한 것이 아니라 자신의 책임으로 수익증권 판매업무 등을 수행하는 독립된 당사자에 해당하고, 따라서 수익자인 원고가 판매회사인 피고로부터 수익증권을 매입한 이 사건의 경우에는 판매회사인 피고에 대하여 환매를 청구할 수 있고, 이러한 경우 판매회사인 피고가 해산 등의 사유로 당해 환매에 응할 수 없는 경우에 한해서만 수익자인 원고가 위탁회사인 제1심 공동피고 서울투자신탁운용 주식회사에 대하여 환매를 청구할 수 있다고 할 것이다.”

2. Judgment on the defendant's argument in the trial

A. Summary of the defendant's assertion

Articles 7 and 30 of the former Investment Trust Business Act, Article 2 of the Addenda to the amended Investment Trust Business Act is unconstitutional for the following reasons, and thus, the defendant has no obligation to respond to the plaintiff's claim for redemption with its own property.

(1) The unconstitutionality of non-petition legislation omission

Article 7 of the former Investment Trust Business Act (amended by Act No. 558, Sept. 16, 1998; hereinafter “former Investment Trust Business Act”) provides that a selling company shall respond to a beneficiary’s claim for redemption of beneficiary certificates, and it was finally repealed by the Indirect Investment Asset Management Business Act (amended by Act No. 6987, Oct. 4, 2003; hereinafter “Revised Investment Trust Business Act”) and there is no exemption provision stipulating that a selling company shall be limited to funds created through partial termination of beneficiary certificates, as well as funds created by the partial termination of beneficiary certificates, but Article 30 provides that a beneficiary certificate can be redeemed as its own property. However, if it is interpreted that a selling company is obligated to respond to a beneficiary’s claim for redemption of beneficiary certificates based on the above provision, it infringes on the beneficiary’s fundamental rights (Article 23(1) of the Constitution), which are fundamental rights of the Investment Trust Company, and it is inconsistent with the principle of equality and omission of a selling company without reasonable grounds.

Section 7 of the former Investment Trust Business Act and other unconstitutionality

㈎ 명확성의 원칙 위배

In its language, it is unclear whether the management or the selling company bears the obligation to redeem with its own property, or not it bears the obligation to pay the redemption price only with the trust property.

㈏ 자기책임의 원리 위배

The profit and loss of beneficiary certificates is determined by the judgment and decision of the truster company that directly manages the trust property, and the selling company is not fully involved in it. Therefore, it is against the principle of self-responsibility under the Constitution that the selling company bears the responsibility for redemption with its own property.

㈐ 입법형성권의 재량 일탈

The legislation compelling a selling company to intervene in its proprietary property is against the principle of separate management of trust property and the principle of limited liability, which are the basic principles of trust, so it infringes on the systematic legitimacy of the Constitution and deviates from the discretion of the legislative formation authority.

㈑ 재산권, 영업의 자유, 직업선택의 자유 침해

The enforcement of the obligation to repurchase by proprietary property is contrary to the principle of beneficiary burden of profits and losses, and it infringes on property rights under the Constitution by essentially limiting the private utility of property and the right to dispose of it. It infringes on the freedom of business by imposing legal responsibility, even though there is no reason to obstruct the free decision-making of business and not attributable to it.

㈒ 과잉금지의 원칙 위배

The enforcement of a selling company's enforcement of redemption by its own property is against the principle of limited liability, and it is against the suitability of the means as a significant unreasonable means, and it is not complied with the constitutional means of redemption due to partial termination of the trust. Therefore, it also violates the principle of minimum infringement, and it is against the principle of balance of legal interests by allowing beneficiaries to be protected more than that stipulated by the Constitution. Therefore, it is against the principle of excessive prohibition.

㈓ 평등의 원칙 위배

Article 7 of the former Investment Trust Business Act provides that the scope of action or responsibility is equally different from that of a management company, a trustee company, or a distribution company with the same responsibility for redemption of its own property. While the management company can choose redemption of its own property pursuant to Article 30 of the former Investment Trust Business Act, the distribution company forced the redemption of its own property as a duty, discriminates against the distribution company without reasonable grounds in comparison with the amended Investment Trust Business Act, discriminates against the distribution company without reasonable grounds in comparison with the amended Investment Trust Business Act, the distribution company's self-reliance level of the distribution company selling the beneficiary certificates, and the Trust Business Act which regulates the distribution company from the distribution company that did not bear the obligation for purchase of the beneficiary certificates with its own property. Therefore, it violates the principle of equality.

Article 2 of the Addenda to the amended Investment Trust Business Act

Article 2 of the Addenda to the amended Investment Trust Business Act provides that the meaning of the provision shall not be clearly understood, and thus it violates the principle of clarity, and it infringes on property rights by reducing the scope of application of the amended Investment Trust Business Act by reducing the scope of application of the amended Investment Trust Business Act, because the amended Investment Trust Business Act was not applied to the redemption of beneficiary certificates of this case purchased on June 28, 1999, although the amended Investment Trust Business Act was not applied to the redemption of beneficiary certificates of this case.

(b) Markets:

(1) Determination as to the assertion that the omission of non-petition legislation is unconstitutional

The non-real legislative omission refers to a case where the contents, scope, procedure, etc. of the legislation are defective in the legislative act by incomplete, insufficient, or unfair regulation of the relevant matters. The defendant does not explicitly stipulate that redemption by the company's own property is not mandatory, but has been unconstitutional since the defendant has a duty to interpret redemption by the selling company's own property in Articles 7 and 30. Thus, it is problematic whether interpreting redemption by inherent property as the seller's duty is unconstitutional against the infringement of property rights and the principle of equality, as argued by the defendant.

However, even if the obligation to redeem the inherent property of a selling company is acknowledged in accordance with the provisions of the former Investment Trust Business Act and the terms and conditions, it shall be assumed that the selling company will play a role as a market developer to revitalize securities investment trust by protecting the selling company by taking into account the rights and interests of the beneficiaries who purchase beneficiary certificates in the situation where the management of investment trust and the policy to separate the sales of beneficiary certificates is implemented, and as a policy to protect them, it shall be assumed that the selling company will play a role as a market developer to create securities investment trust. In addition, in cases where there are unavoidable reasons such as large-scale claim for redemption of beneficiary certificates in accordance with Article 7(4) of the former Investment Trust Business Act and Article 12 subparag. 3 of the Enforcement Decree thereof, the obligation shall be revised and modified. Thus, it shall not be deemed that it goes against the basic principles of investment trust, such as the principle of performance distribution and limited liability (see Supreme Court

In addition, even if the content of the obligation borne by the selling company is not that the selling company bears all losses of beneficiaries, such as in the case of the principal guarantee agreement, but that is, for the above policy purpose and beneficiaries' convenience, it is the degree that the selling company holds large-scale assets and conducts business activities directly face-to-face with beneficiaries, and that the selling company directly receives sales remuneration and repurchase fees from beneficiaries, etc. should pay and repurchase the beneficiary certificates at the base price on the day when the beneficiary claims the redemption, and it does not seem to be excessive or unreasonable in terms of the means. Accordingly, even if the selling company suffers property loss as a result of the above interpretation, it cannot be said that the restriction on the basic rights of the selling company is excessive or that the property rights are infringed in essence.

Meanwhile, even if the amendment was made to the amended Investment Trust Business Act that makes it possible to repurchase due to partial termination of trust property only due to adverse effects caused by excessive possession of non-sale beneficiary certificates, etc. based on its business policies, etc., as seen above, insofar as the distribution company imposes an obligation to repurchase with its own property is not unconstitutional, as long as it is not itself unconstitutional to impose an obligation to repurchase with its own property, whether to allow the distribution company, etc. to repurchase with its own property or to prohibit it as the amended Investment Trust Business Act is in line with the legislative reasonable discretion. Thus, just because such amendment was made, it cannot be deemed that the former Investment Trust Business Act unreasonably discriminates against the distribution company compared to the amended Investment Trust Business Act, and thus, it cannot be said that Article 7 and Article 30 of the former Investment Trust Business Act violates the principle of equality.

Therefore, in the securities investment trust, the selling company cannot be deemed to have a legislative obligation under the Constitution to clearly define the law in order to prevent the selling company from bearing the redemption obligation with its own property. Therefore, the defendant's above assertion premiseding that such legislative obligation exists cannot be accepted.

D. Judgment on the unconstitutionality of Article 7 of the former Investment Trust Business Act

㈎ 명확성의 원칙 위배 여부

In the legislation, since the legislation that clearly regulates all individual legal relations is technically impossible, it is inevitable to define it in a way that requires the court's supplementary interpretation to a certain extent within a somewhat broad or broad range of scope, and if it can be removed by the interpretation of the court, it cannot be viewed as unconstitutional (see Supreme Court Order 2004Kaga27, July 28, 2005, etc.).

However, Article 7 of the former Investment Trust Business Act imposes the obligation to repurchase beneficiary certificates on the selling company, and Article 30 of the Act provides that the management company permitted to sell beneficiary certificates from Article 30 may repurchase beneficiary certificates with its own property, and provides the basis for two repurchase methods, namely, redemption due to partial termination of the trust. Meanwhile, Article 23(2) of the former Investment Trust Business Act and Article 12 of the former Enforcement Decree of the former Enforcement Decree of the Investment Trust Business Act do not sell beneficiary certificates issued with partial termination of the trust, in cases where the management company or the selling company fails to sell the beneficiary certificates issued with its own property, the former Investment Trust Business Act grants a large amount of claim for redemption of beneficiary certificates, and does not provide for beneficiary's claim for redemption on the grounds of partial termination of the trust. In full view of these provisions, in cases of ordinary claims for redemption for which a management company is unable to request partial termination of the trust, it cannot be deemed to violate the principle of clarity under Article 7 of the former Investment Trust Business Act without contradiction.

㈏ 자기책임의 원리 위배 여부

As seen earlier, the selling company entered into a consignment contract with the truster company, such as the instant consignment contract, and on the other hand, as a securities company holding large assets and business network, directly executes a beneficiary certificate savings contract with the beneficiary, delivers the terms and conditions of the investment trust to incorporate them into the content of the contract, provides an investment trust explanatory note, etc. (it may be possible for the beneficiary to purchase and keep the beneficiary certificates immediately among the beneficiaries), and subsequently, purchases and keeps the beneficiary certificates, and receives the sales remuneration and redemption fees directly from the beneficiary, etc. In other words, the selling company is an independent party who sells the beneficiary certificates for its own responsibility and account. To this end, the selling company is an independent party who performs the sales business of the beneficiary certificates in the securities investment trust, and sells the beneficiary certificates after reviewing all the laws and regulations, the terms and conditions, the contents of each contract, and the product nature of each contract, etc. to be sold in advance. In light of such a selling company’s position and form of business, it does not violate the principle of self-responsibility.

㈐ 체계정당성을 침해하는 입법으로서 입법형성권의 재량을 일탈했는지 여부

As seen earlier, the substance of the obligation to repurchase by the selling company’s inherent property requires the selling company to repurchase beneficiary certificates, and the trust property for the trustee company is maintained. Meanwhile, the selling company may request the truster company to terminate the re-purchasing beneficiary certificates or expect and hold future interests based on its own judgment. However, the selling company shall calculate the redemption price paid by the selling company to the beneficiary in accordance with the policy purpose of promoting the securities investment trust by protecting the beneficiaries more strongly, and make it paid on the day in principle according to the base price on the date of the claim for redemption. Thus, this does not essentially undermine the separate management of the trust property, but does not infringe on the intrinsic substance of the limited liability principle of the trust in accordance with the legal principles, such as the provision of a device modified or modified for large-scale claim for redemption of beneficiary certificates, and thus, does not deviate from the reasonable discretion of the legislation.

㈑ 재산권, 영업의 자유, 직업선택의 자유를 침해하는지 여부

In light of the contents and degree of the redemption obligation as seen earlier, and the purpose of imposing the redemption obligation, etc., the seller’s obligation to repurchase with its proprietary property infringes on the essential contents of the property right, or thereby interferes with the seller’s free decision-making process, and it cannot be said that the seller’s freedom of business or freedom of occupation is infringed upon due to interference with the entry into the sales business of beneficiary certificates (see, e.g., Supreme Court Decision 2006Da1548, Apr. 2, 2

㈒ 과잉금지의 원칙에 위배되는지 여부

We examine the reasons why the defendant asserts that the selling company's obligation to repurchase its proprietary property is in violation of the excessive prohibition principle, and therefore, it does not go against the essence of securities investment trust and the basic principles of trust, the means is not excessive or unreasonable, and the fact that not only partial termination of the trust but also the imposition of the obligation to repurchase its proprietary property is constitutional means and the imposition of the obligation to repurchase its proprietary property does not violate the principle of self-responsibility. As examined above, it cannot be concluded that the beneficiary is more protected by the Constitution because the above obligation to repurchase is recognized and the beneficiary is more strongly protected. Accordingly, it is difficult to accept all the grounds that the defendant asserts that the above obligation to repurchase is against the excessive prohibition principle.

㈓ 평등의 원칙에 위배되는지 여부

A truster company or trustee company liable for redemption under Article 7 of the former Investment Trust Business Act is a trustee company where the truster company or the selling company, who has been permitted to sell beneficiary certificates, cannot respond to redemption due to dissolution, etc., and where the truster company or the selling company is not able to comply with the redemption due to dissolution, etc., which is different from the case where the selling company bears the redemption obligation. Thus, it cannot be viewed as imposing the same redemption obligation as the defendant's assertion. As seen above, the interpretation that the sale company is scheduled to repurchase its proprietary property by the selling company, etc. under the former Investment Trust Business Act is in accordance with Articles 7 and 30 (1) of the former Investment Trust Business Act and Article 12 of the Enforcement Decree of the former Enforcement Decree of the Investment Trust Business Act, and this is equally applied to the case of the truster company permitted to sell or sell the beneficiary certificates (the above management company does not exist). Although there is a difference between the selling company and the beneficiary, even if there is no difference in the result of the redemption, it cannot be viewed as an unreasonable self-discrimination of the Trust Business Act.

【Judgment on the unconstitutionality of Article 2 of the Addenda to the Amendment

Article 2 of the Addenda to the amended Investment Trust Business Act clearly states that the case where the newly amended provisions are applied in relation to the redemption of beneficiary certificates shall be the case where the beneficiary certificates are redeemed in accordance with the trust terms and conditions enacted first after the enforcement of the amended Act or the trust terms and conditions with changes in the terms and conditions that extend the trust contract period. Therefore, it cannot be said that there

In addition, Article 2 of the Addenda to the amended Investment Trust Business Act minimizes the possibility of retroactive application of the amended Investment Trust Business Act, and the reason for minimizing the possibility of retroactive application of the amended Investment Trust Business Act is that the amended Investment Trust Business Act prohibits the repurchase of proprietary property by the selling company, etc., which results in disadvantageous consequences to the beneficiary. Thus, in light of the purport of the enactment of the Securities Investment Trust Business Act for the purpose of protecting the beneficiary, Article 13(2) of the Constitution that provides that the property right shall not be deprived by retroactive legislation, etc., the contents of the amended Investment Trust Business Act for the purpose of protecting the beneficiary are determined to be reasonable, and thus, it cannot be said that the unconstitutionality is also established.

(c) Conclusion

Therefore, the defendant's assertion that Article 7 and Article 30 of the former Investment Trust Business Act and Article 2 of the Addenda to the amended Investment Trust Business Act are unconstitutional is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendant shall be accepted within the scope of the above recognition and the remaining claims shall be dismissed. The judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed.

Judges Choi Jae-in (Presiding Judge) Kim Dong-dong,

(1) A selling company upon receipt of a claim for redemption under the main sentence of Article 7 (2) of the amended Investment Trust Business Act shall, without delay, demand the truster company (referring to the trustee company in the case of falling under paragraph (3)) to comply with the request for redemption.