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

Puden Social Investment Securities Co., Ltd and one other (Attorneys Kim Su-soo et al., Counsel for the plaintiff-appellant)

April 20, 2011

Seoul Central District Court Decision 2008Gahap42312 Decided May 13, 2010

1. The plaintiff's appeal and the selective claims added in the trial are all dismissed.

2. The costs of appeal (including the costs of appeal additionally incurred) shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The Defendants jointly and severally pay to the Plaintiff the amount of KRW 19,50,000 and KRW 13,90,000,000 from December 21, 2005, the remainder of KRW 5,650,000 from June 21, 2006 to the delivery date of the copy of each of the instant complaint, and the amount of KRW 6% per annum from June 21, 2006 to the full payment date from the next day to the full payment date. (The Plaintiff, at the first instance court, claims for damages arising from tort against Defendant Puden Social Investment Securities Co., Ltd., and the amount of KRW 13,90,00 from the violation of the duty of due care was added to Defendant Puden Social Investment Securities Co., Ltd.).

1. cite the judgment of the first instance;

The reasoning for this Court’s judgment with respect to this case shall be

○ At the fourth 19,20th 20th 19, the first instance court’s decision, “In order to avoid exchange risks, including, but not limited to, the assessment of US dollars at the time when the principal and interest on the investment is repaid from Russia, the Defendant’s securities will be evaluated as the principal and interest on the investment between Russia and Russia,” and “In order to avoid exchange risks, such as, inter alia, Defendant Securities and Trusted Bank (Securities Investment Department) shall be evaluated as the principal and interest on the investment at the time when Russia becomes active from Russia, and the principal and interest on the investment will be assessed as

○ 7th 9,10th 7th 9, “from the management of the instant investment trust property” means “ from the former bank (or the former bank) managing the instant investment trust property in accordance with the direction of the Defendant’s management”;

The term "120,000,000 won" in the 10th 3th th th th th th ,000 shall be "$112,00,000", and the following judgments shall be cited by the main sentence of Article 420 of the Civil Procedure Act, as stated in the reasoning of the judgment of the first instance,

2. Additional determination

A. Whether Defendant Securities acquired the claim for indemnity

(1) The plaintiff's assertion

The plaintiff asserts that the defendant's securities did not acquire the claim for indemnity for the following reasons, and that it is improper to exercise the claim for indemnity against the investment trust property of this case.

① The gift exchange contract of this case is not a trustee of the investment trust contract of this case, but it is concluded by the Defendant, the truster, and thus its profits and losses cannot immediately revert to the investment trust property of this case. It is evident that there was a judgment that “the instant gift exchange contract cannot be automatically concluded as to the investment trust property or the Defendants’ liabilities against the payment bank shall not be limited to the investment trust property.” Therefore, the Defendant’s securities did not acquire the claim for reimbursement.

② The loss incurred under the instant futures exchange contract, which Defendant Securities assumed, is a liability for nonperformance due to the conclusion of a futures exchange contract and the refusal of the performance thereof, and thus, should not be attributed to the management expense of the instant investment trust property. In addition, the terms and conditions of the instant investment trust agreement guarantee the predictability of beneficiaries for the management expenses of the investment trust property by specifying the maximum remuneration for foreign consulting fees and storage agents. The fact that the Defendant Securities, the truster, belongs to the investment trust property even to the enormous loss under the gift exchange contract separately concluded by the Defendant Securities, the truster, would bring about unexpected loss to the beneficiaries.

③ Unlike expected, the Defendant’s securities did not prepare a separate preparation with a view to the possibility of a sudden change in exchange rates or a delay in the repayment of an investment trust. Therefore, the Defendants’ conclusion of the instant futures exchange agreement and the purpose of preserving the investment trust property cannot be deemed as having been aimed at preserving the instant investment trust property.

④ The Defendant Securities: (a) redeemed the beneficiary certificates under the instant investment trust agreement as the inherent property of the Defendant Securities; and (b) held them in the form of the non-sale beneficiary certificates in its own account, in which the beneficiary certificates were returned to the beneficiary after Russia’s events; and (c) held the Defendant Securities in the form of the non-sale beneficiary certificates. Therefore, the direct conclusion of the instant gift exchange agreement in the name of the Defendant was the intention to assume the risks therefrom from the beginning to the inherent account; and (b) it is unreasonable to vest

Shed Judgment

㈎ 원고의 위 ①주장에 관하여 살피건대, 상행위의 대리는 본인을 위한 것임을 표시하지 않더라도 본인에게 효력이 있는데( 상법 제48조 ), 을 제1호증의 1, 2, 3의 각 기재에 의하면 이 사건 투자신탁계약의 위탁자인 피고 증권뿐만 아니라 수탁자인 조흥은행(증권투자부)도 선물환계약의 내용을 확인하고 승인한 사실을 인정할 수 있다. 그러므로 비록 이 사건 선물환계약이 조흥은행(국제금융부)과 피고들 사이에 체결된 것이라고 하더라도, 피고 증권이 이 사건 선물환계약을 체결한 행위의 효력도 이 사건 투자신탁에 미친다고 보아야 한다.

Therefore, the defendant's securities that have repaid the loss caused by the gift exchange contract of this case shall be deemed to have the claim for indemnity. Therefore, the plaintiff's above note (1) is not correct.

㈏ 원고의 위 ②주장에 관하여 살피건대, 이 사건 투자신탁은 러시아 국공채 등에 투자하는 것을 주된 목적으로 하고 있었으므로 외화 자산의 환율변동으로 인한 투자신탁재산의 위험을 회피할 대책을 마련할 필요가 있었고, 이 사건 투자신탁계약도 선물환계약을 체결할 것을 전제하고 있었으므로, 선물환계약의 체결과 이에 수반하여 발생한 법적 의무의 이행에 따른 비용은 모두 투자신탁재산의 운용비용에 속한다고 보아야 한다. 또한 피고 증권이 선물환계약 체결 과정에서 선량한 관리자로서의 주의의무를 게을리 하였다는 등의 특별한 사정이 없으므로 이 사건 선물환계약으로 인한 손실은 이 사건 투자신탁재산에 귀속된다고 보아야 한다.

Therefore, the plaintiff's above 2nd head is not correct.

㈐ 원고의 위 ③주장에 관하여 살피건대, 피고들이 이 사건 투자신탁재산의 운용과정에서 피고들의 예상과 달리 환율이 급격하게 변동될 위험이 있다거나 러시아의 지불유예 선언 등으로 투자위험이 현실화할 가능성이 있다고 예상하였어야 마땅함에도 이를 예상하지 못하였다고 인정할 만한 증거가 없다. 그러므로 피고 증권이 위와 같은 투자위험의 현실화 가능성을 고려하여 별도의 대비책을 마련하지 않았다는 것이 투자신탁재산의 운용과정에서 선량한 관리자로서의 주의의무를 게을리 한 것이라고 할 수 없다.

Therefore, the plaintiff's above third chapter is not correct.

㈑ 원고의 위 ④주장에 관하여 살피건대, 앞서 살펴본 바와 같이 피고 증권이 이 사건 선물환계약을 체결한 행위는 투자신탁을 위한 것임을 표시하지 않았다고 하더라도 이 사건 투자신탁에 효력이 미치고, 피고 증권이 이 사건 선물환계약을 그 명의로 체결한 것이 그로 인한 손실을 피고 증권의 고유계정으로 부담하기로 한 것이라고 단정할 수는 없다.

Therefore, the plaintiff's above 4th chapter is not correct.

B. Whether Defendant Securities renounced the claim for reimbursement

(1) The plaintiff's assertion

The plaintiff asserts that the defendant's securities implicitly renounced the claim for indemnity for the following reasons, and that it is improper to exercise the claim for indemnity against the investment trust property of this case.

① Since “the pertinent assets and related debts” are also included in the assets subject to acquisition in accordance with the instant asset acquisition agreement, the status of the beneficiary holding the non-sale beneficiary certificates and the right to indemnity as a beneficiary of the non-sale beneficiary certificates should be deemed to have been transferred to the Plaintiff.

② An asset acquisition agreement entered into between the Plaintiff and the Defendant is based on the financial statements of the Defendant Securities, which are objective accounting data that have undergone audit and review by an accounting firm. However, the financial statements of the Defendant Securities did not indicate the claim for indemnity of the Defendant Securities, and were recorded only in the trust account president at the latest. As such, the Korea Deposit Insurance Corporation that entered into a contract for stock acquisition with the Defendant Securities, or the Plaintiff who entered into an asset acquisition agreement with the Plaintiff, was entirely unlikely to expect that the Defendant would exercise the claim for indemnity.

③ Since Defendant Securities received public funds on the premise that they did not have a claim for reimbursement, they should be deemed to have waived the claim for reimbursement. Moreover, pointing out the waiver of the claim for reimbursement by Defendant Securities does not seek the return of the public funds excessively invested by the Korea Deposit Insurance Corporation.

Shed Judgment

㈎ 원고의 위 ①주장에 관하여 살피건대, 갑 제1호증의 기재에 의하면 원고와 피고 증권이 이 사건 투자신탁계약에 따른 부담이나 권리를 양도양수하기로 약정한 사실이 인정되므로 원고가 이 사건 투자신탁계약상의 수익증권을 취득하였다고 볼 수는 있으나, 피고 증권이 취득한 구상금채권을 양수하였다고 인정할 만한 증거가 없다.

Therefore, the plaintiff's above ① is not correct.

㈏ 원고의 위 ②, ③주장에 관하여 살피건대, 채권의 포기(또는 채무의 면제)는 반드시 명시적인 의사표시만에 의하여야 하는 것이 아니고 채권자의 어떠한 행위나 의사표시의 해석에 의하여 그것이 채권의 포기라고 볼 수 있는 경우에도 이를 인정하여야 하나, 그와 같이 인정하기 위하여는 당해 권리관계의 내용에 따라 이에 대한 채권자의 행위나 의사표시의 해석을 엄격히 하여 그 적용 여부를 결정하여야 한다( 대법원 2010. 10. 14. 선고 2010다40505 판결 등 참조).

However, just because no claim for indemnity is stated in the balance sheet, which is only an internal account book of the Defendant Securities, or the unpaid expenses related to the claim for indemnity is appropriated in the middle of the investment trust property branch of the Defendant’s management, it cannot be deemed a ground to deem the Defendant Securities to have waived the claim for indemnity. In addition, it cannot be deemed that the Korea Deposit Insurance Corporation renounced the claim for indemnity for this reason, even if the Defendants obtained unjust profits by excessively investing public funds more than necessary, regardless of the fact that the Korea Deposit Insurance Corporation might bring about an issue.

Therefore, the plaintiff's above (2) and (3) are not correct.

C. Whether the exercise of the claim for reimbursement against the Defendant’s securities violates the good faith principle or the prohibition of inconsistency

(1) The plaintiff's assertion

The exercise of the claim for reimbursement against the Defendant’s securities cannot be permitted because it violates the principle of good faith or the principle of good faith for the following reasons.

① The Defendant’s securities are merely disposed of as special losses the amount of loss in a gift exchange lawsuit on the financial statements, but did not include the claim for indemnity in the assets for indemnity.

② If a loss is incurred under a futures exchange contract, immediately revert to the investment trust property and transfer the loss to the beneficiary in accordance with the “Principle of Actual Distribution,” which is the essence of the investment trust. Nevertheless, the Defendant’s securities, however, share the loss to the beneficiary in the account unique to the Defendant’s own account by repurchase of account books. The Defendant’s actual inspection report on the Defendant’s securities and the Defendant’s management is also investigating that the Defendant

③ As above, Defendant Securities assumed the amount of loss to the previous beneficiaries of the instant investment trust agreement as the unique account of the Defendant Securities. It is unreasonable that the Plaintiff concluded a contract for acquisition of assets with Defendant Securities and concluded that the Plaintiff would become a new beneficiary, thereby reverting the amount of loss to the investment trust property.

④ Since Defendant Securities stated and guaranteed the adequacy of the financial statements at the time of entering into the instant stock acquisition agreement, they are either confirmed or expressed their intent not to exercise the claim for indemnity.

Shed Judgment

According to Gap evidence No. 14 and Gap evidence No. 17, each of the above facts, the accounting firm assumed that the defendants' own account and trust account bear losses under the investment trust contract of this case while conducting an actual inspection of the defendants' own account and trust account, and that the defendants' own account and trust account were assessed. However, the above report is prepared to show the defendants' financial standing with the defendants in the future. Thus, it cannot be deemed that the defendant's securities did not hold the claim for indemnity of this case or expressed their intent not to exercise the claim for indemnity of this case, based on the contents of the above report.

In addition, the principle of trust and good faith is an abstract norm that the parties to a legal relationship should not exercise their rights or perform their duties in a way that violates the principle of trust and good faith by taking into account the other party’s interest, and thus, in order to deny the exercise of such rights on the ground that it violates the principle of trust and good faith, there should be a good faith provided to the other party, or the other party should be objectively regarded as having good faith, and the exercise of rights against the other party’s trust should be in such a situation that is not acceptable in light of the concept of justice (see, e.g., Supreme Court Decision 2001Da67126, Mar. 15, 2002). The fact that the lost amount in a gift exchange lawsuit in the balance sheet of the defendant’s securities did not be treated as special losses and did not include the claim for indemnity, or that the defendant’s securities exercised the claim for indemnity merely because the unpaid expenses related to the gift exchange lawsuit was appropriated later at the expense of the investment trust held by the defendant operation cannot be said to violate the principle of trust

Therefore, all of the plaintiff's above arguments are not correct.

3. Conclusion

Therefore, all of the plaintiff's claims (including selective claims added in the trial) shall be dismissed unfairly, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed, and the plaintiff's selective claims added in the trial are also dismissed.

Judges Jo Hee-de (Presiding Judge) For the purpose of this Act