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(영문) 대법원 2018. 7. 20. 선고 2016다35352 판결
[손해배상(기)][미간행]
Main Issues

[1] Details of the duty of explanation to be borne by a financial investment business entity when recommending to make an investment to ordinary investors, and the standard for determining which degree of such duty should be explained

[2] In a case where there is time difference between the time when the tort occurred and the time when the damage occurred, the time when the tort liability is established (=the time when the damage occurred) / The meaning of “damage” and “the time when the damage occurred” and the method of determining whether the damage occurred actually

[3] Where a financial investment business entity causes damage to ordinary investors in violation of its duty to explain when recommending investment, whether the amount of damage is presumed to have been calculated by subtracting the total amount of money, etc. recovered or recoverable from the total amount of money, etc. paid or payable with the acquisition of the financial investment instruments from the total amount of money, etc. (affirmative), and the time when it serves as the basis for calculating the amount of

[Reference Provisions]

[1] Article 47(1) and (3) of the Financial Investment Services and Capital Markets Act / [2] Articles 393, 750, and 763 of the Civil Act / [3] Articles 393, 750, and 763 of the Civil Act; Article 48(1) and (2) of the Financial Investment Services and Capital Markets Act

Reference Cases

[1] Supreme Court Decision 2008Da52369 Decided November 11, 2010 (Gong2010Ha, 2227) / [2] Supreme Court Decision 2010Da76368 Decided July 28, 201 (Gong2011Ha, 1757), Supreme Court Decision 2012Da29649 Decided January 24, 2013 / [3] Supreme Court Decision 2016Da21272 Decided June 15, 2018 (Gong2018Ha, 1250)

Plaintiff-Appellant-Appellee

Plaintiff (Law Aid Corporation, Attorneys Han Han-jin et al., Counsel for plaintiff-appellant)

Defendant-Appellee-Appellant

[Plaintiff-Appellant] Securities Co., Ltd. (Law Firm Namsan, Attorneys Hah Ho-ho et al., Counsel for plaintiff-appellant)

Judgment of the lower court

Seoul Central District Court Decision 2015Na73349 decided June 29, 2016

Text

All appeals are dismissed. The costs of appeal are assessed against each party.

Reasons

The grounds of appeal are examined.

1. Judgment on the Defendant’s grounds of appeal

Where a financial investment business entity solicits an ordinary investor to make an investment, it shall explain the details of the financial investment instrument, the risks associated with the investment, and other matters prescribed by Presidential Decree so that the ordinary investor can understand such important matters, and shall not explain or omit any important matters that may have a significant impact on the investor's reasonable judgment on investment or the value of the relevant financial investment instrument by falsity or distortion (Article 47 (1) and (3) of the Financial Investment Services and Capital Markets Act (hereinafter "Capital Markets Act"). In such cases, whether to explain to an investor to a certain extent shall be determined by comprehensively taking into account the characteristics and risk level of the relevant financial investment instrument, investor's investment experience and ability (see Supreme Court Decision 2008Da52369, Nov. 11, 2010, etc.).

The lower court acknowledged the facts as indicated in its reasoning based on its adopted evidence, and determined that the Defendant failed to fulfill its duty to explain when recommending the Plaintiff to invest in the bonds with warrants issued by Daewoo Motor Sales Co., Ltd (hereinafter referred to as “the instant bonds”) and the company with warrants (hereinafter referred to as “instant bonds”).

Examining the aforementioned legal principles and records, 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 failing to exhaust all necessary deliberations, contrary to what is alleged in the grounds of

2. Judgment on the Plaintiff’s grounds of appeal

A. As to the assertion of misapprehension of legal principles as to the suitability principle

A financial investment business entity shall grasp information about the investment purpose, status of property, experience in investment, etc. of an ordinary investor through an interview, inquiry, etc. before recommending an ordinary investor to make an investment, and shall not make an investment recommendation deemed inappropriate for the ordinary investor in light of the investment purpose, status of property, experience in investment, etc. (Article 46(2) and (3) of the Financial Investment Services and Capital Markets Act).

Based on its stated reasoning, the lower court determined that it was difficult to view that the Defendant’s solicitation of the Plaintiff to invest in the instant corporate bonds violates the suitability principle, based on the Plaintiff’s investment purpose and investment experience.

In light of the aforementioned legal principles and records, the lower court did not err by misapprehending the legal doctrine on the suitability principle, or by failing to exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal.

B. As to the assertion of misapprehension of legal principles as to the calculation of damages under Article 48(2) of the Capital Markets Act

(1) In principle, tort liability liability is established at the time of an illegal act, but if there is an interval between the time of the illegal act and the time of the occurrence of damage, damage is established at the time of occurrence of the damage (see, e.g., Supreme Court Decision 2012Da29649, Jan. 24, 2013). Damage refers to any property disadvantage caused by an illegal harmful act, i.e., the difference between the property condition that existed without the illegal act, and the property condition after the illegal act. Also, the time of occurrence of damage refers to the time of actual occurrence of the damage. Whether the damage actually occurred should be determined objectively and reasonably in light of social norms (see, e.g., Supreme Court Decision 2010Da76368, Jul.

Where a financial investment business entity causes damage to an ordinary investor in violation of its duty to explain when recommending the investor to do so, the amount of damage shall be presumed to be an amount calculated by subtracting the total amount of money, etc. collected or recoverable by the ordinary investor by means of the disposition of the financial investment instrument or by any other means, from the total amount of money and other property value paid or payable by the ordinary investor as a result of acquiring the financial investment instrument (hereinafter referred to as “unclaimed amount”). As can be seen, damages to the ordinary investor due to the financial investment business entity’s breach of the duty to explain occur in reality at the time when the unclaimed amount becomes final and conclusive, and the amount of damage shall also be calculated as at the point of time (see Supreme Court Decision 2016Da21272, Jun. 15, 2018).

(2) According to the reasoning of the judgment below, the following facts are revealed: ① (a) the Plaintiff purchased the corporate bonds of this case following the Defendant’s investment recommendation, and thereafter the rehabilitation procedure commenced for the secondary sales; (b) the rehabilitation plan was approved for the conversion of shares into equity in the method of issuing new shares in the rehabilitation procedure to replace part of the principal and interest of the corporate bonds; and (c) the Plaintiff did not dispose of the new shares acquired in accordance with the rehabilitation plan until the closing of argument in the court below, but the amount equivalent to the market price of the above new shares as at the time when the said new shares could have

(3) We examine the above facts in light of the legal principles as seen earlier.

As at the time when the Plaintiff was able to dispose of new shares acquired according to the rehabilitation plan, the amount equivalent to the market price of the above new shares falls short of the amount of claims that the Plaintiff would substitute for repayment. Therefore, it is clear that the total amount of money, etc. recoverable by the Plaintiff is less than the total amount of money paid as purchase price of the company’s bonds. Therefore, if an objective and reasonable determination is made in light of social norms, at the latest, at the time when the new shares were disposed of, the amount

In the same purport, the lower court did not err by misapprehending the legal doctrine on the assessment of damages under Article 48(2) of the Capital Markets Act, contrary to what is alleged in the grounds of appeal, in rejecting the Plaintiff’s assertion that the amount of damages should be

C. As to the misapprehension of legal principles on limitation of liability ratio

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine regarding the limitation of liability ratio or by failing to exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal.

3. Conclusion

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

Justices Kim So-young (Presiding Justice)

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심급 사건
-서울중앙지방법원 2016.6.29.선고 2015나73349