Plaintiff 1 and three others (Attorney Kim Jung-sik, Counsel for the plaintiff-appellant)

Daegu Bank (LLC, Kim & Lee LLC, Attorneys Jeon Byung-hee et al., Counsel for the defendant-appellant)

June 10, 2015

Daegu District Court Decision 2013Gahap10141 Decided September 4, 2014

1. Of the judgment of the court of first instance, the part against the defendant in excess of the money ordered to be paid below is revoked, and all the plaintiffs' claims for cancellation are dismissed.

The defendant shall pay to the plaintiff 1 269,241,460 won, 215,393,175 won, 3, and 4 each interest rate of 161,54,886 won and 5% per annum from March 23, 2009 to July 8, 2015, and 20% per annum from the next day to the date of full payment.

2. All remaining appeals by the Defendant are dismissed.

3. Of the total litigation costs, 60% are borne by the Plaintiffs, and 40% is borne by the Defendant.

4. The part ordering the payment of money as referred to in paragraph (1) may be provisionally executed.

1. Purport of claim

A. The primary purport of the claim is to pay to Plaintiff 1 678,712,850 won, 542,970,289 won, 3, and 407,227,724 won, respectively, and 6% per annum from February 15, 2013 to the date of delivery of the duplicate of the complaint of this case, and 20% per annum from the next day to the date of full payment.

B. Preliminary claim: The defendant shall pay to the plaintiff 1 384,630,658 won, 307,704,536 won, 230,778,409 won, and 5% per annum from March 23, 2009 to October 30, 2013, and 20% per annum from the next day to the date of full payment.

2. Purport of appeal

Among the judgment of the first instance, the part against the defendant shall be revoked, and all plaintiffs' claims corresponding to the revoked part shall be dismissed.

1. Scope of the deliberation of the political party;

In the first instance court, the plaintiffs filed a claim for the contract deposit against the defendant and the conjunctive claim for damages based on the employer's primary liability. The first instance court dismissed the main claim and accepted the conjunctive claim. The defendant only filed an appeal and sought a dismissal of the conjunctive claim. Thus, the subject of the judgment of the court is limited to the conjunctive claim.

2. cite the judgment of the court of first instance

The court's explanation on this case is identical to the part of the reasoning of the judgment of the court of first instance except for the modification as follows. Thus, the court's explanation on this case is accepted in accordance with the main text of Article 420 of the Civil Procedure Act (excluding the part concerning the main claim not falling under the scope of the judgment of the court of first instance (Article 8, 18, 10, 100).

3. The modified part.

A. In Section 1 of Section 20 of the judgment of the first instance court, the phrase “a disposition of reimbursement of KRW 15,955,00 for the head of the bank and reimbursement of KRW 15,95,00” shall be amended to read “the head of the bank’s demand for reprimand and a disposition of KRW 15,955,00 for reimbursement of KRW 15,90”.

B. From 12 to 23 of the judgment of the first instance court (the judgment on limitation of liability and the part on the lawsuit) are amended as follows.

A. L. L. L.I.

2) Limitation on liability

If a victim was negligent in causing or expanding damage in a damage compensation case due to a tort, it shall be taken into account as a matter of course in determining the scope of liability for damages (see Supreme Court Decision 2012Da29649, Jan. 24, 2013, etc.).

Considering the above facts and the following circumstances, considering the Plaintiff’s negligence and the characteristics of the specified money trust product of this case, the Defendant’s responsibility in this case ought to be limited to 70% of the damages suffered by the Plaintiffs under the principle of equity, in light of the principle of equity.

① The investor of the financial product must carefully examine the concept, content, structure of profit and loss, investment risk, etc. of the financial product he/she intends to invest in accordance with the principle of self-responsibility and determine whether to invest (see Supreme Court Decision 2011Da112407, Feb. 27, 2014). Therefore, Nonparty 2, who entered into a specified money trust contract on behalf of the Plaintiffs or the Plaintiffs, with careful consideration of the contents of the investment product in accordance with the principle of self-responsibility, and decided whether to invest, however, he/she believed only the end of Nonparty 1 in the existing transaction with Nonparty 2 and subscribed to the specified money trust product of this case.

② Furthermore, “specified money trust” that the Plaintiffs joined is a product that belongs to the beneficiary, barring special circumstances, such as the trust company’s failure to perform its duty of care as a good manager, and the principle of self-responsibility and the principle of actual apportionment of performance (see, e.g., Supreme Court Decision 2005Da64552, Nov. 29, 2007).

③ The instant specified money trust product is seeking a high rate of return of 12% per annum by lending from the resort project in Japan, and has a high risk of investment.

④ Nonparty 2 had been experienced in investing in goods with risks of principal loss, such as stock-type funds, ESS, real estate enforcement projects, etc. over several times in the past, and thus, Nonparty 2 could sufficiently recognize the risk of loss incurred from subscribing to the instant specified money trust product.

D. Sub-determination

Therefore, the defendant is liable for damages based on the above employer's liability: 269,241,460 won (=384,630,658 won x 70% x 70% x 70% x 70%) to the plaintiff 2, 215,393,175 won (=307,704,536 won x 70%) to the plaintiff 3, and 4 161,54,886 won (=230,78,409 won x 70%) to the plaintiff 3, and each of these damages suffered by the plaintiffs 161,54,86 won (230,78,409 won x 70%) from March 23, 2009, which is the day following the expiration date of the trust period, to the day after July 8, 2015, the judgment of the court below held that it is reasonable to dispute the existence and scope of the obligation.

4. Conclusion

Therefore, the plaintiffs' claims of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed for each reason. Since the part against the defendant who ordered payment to the defendant in excess of the above recognition scope is unfair in conclusion, the part against the defendant in the judgment of the court of first instance is so unfair as to be so decided, each of the defendant's appeals is partially accepted and the plaintiffs' claims corresponding to the revoked part shall be dismissed, and all of the defendant's remaining appeals shall be dismissed for all of the reasons.

Judges Jin Sung-chul (Presiding Judge) Kim Tae-tae