Plaintiff 1 and one other (Attorney Kim Jong-sik, Counsel for the plaintiff-appellant)

Defendant (Law Firm, Kim & Lee LLC, Attorneys Cho Young-chul et al., Counsel for the defendant-appellant)

September 1, 2011

Seoul Western District Court Decision 2010Da47561 Decided March 11, 2011

1. Revocation of each part of the judgment of the court of first instance against each of the plaintiffs, which orders payment below.

2. The defendant shall pay to the plaintiffs 39,451,082 won with 5% interest per annum from August 13, 2010 to September 22, 2011, and 20% interest per annum from the next day to the day of full payment.

3. All remaining appeals by the plaintiffs are dismissed.

4. All costs of the lawsuit shall be borne by the defendant.

5. Paragraph 2 can be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to each of the plaintiffs 39,451,082 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. On September 2, 1943, Nonparty 1 married with Nonparty 3, the wife of Nonparty 4, 2, 5, 6, and 7, who are children, were the Defendant and Nonparty 7. The Plaintiffs are Nonparty 2’s grandchildren as Nonparty 1’s grandchildren.

B. Nonparty 1, who was engaged in commerce in North Korea’s original area, operated miscellaneous images by settling it in Daejeon after the end of the month with his family members, and in around 1960, operated a salt farm and a Japanese-bron agency in Gunsan in Seoul. In that process, Nonparty 1 collected considerable property including several parcels of real estate.

C. Around December 12, 2002, Nonparty 1 entered into an investment trust agreement with C&D securities company (former trade name: investment trust securities company: hereinafter “C&D securities”) and with 30,000,000 won of beneficiary certificates 29,723.27 accounts (beneficiary certificates 4) issued by C&D investment trust companies, respectively, in the name of Plaintiff 1 and Plaintiff 2, respectively (hereinafter “instant investment trust agreement”).

D. At the time, Nonparty 1 stated the Plaintiffs’ name and resident registration number in an investment trust application, but upon using the Plaintiffs’ personal seal due to transaction seal impression, the Plaintiffs’ real name verification was made from cream investment securities, and the Plaintiff was issued with a passbook with his seal affixed on the column for the seal imprint. Nonparty 1 kept and managed the said passbook along with the seal imprint, and died on April 30, 2007.

E. On July 23, 2007, the Defendant visited the passbook in the name of the Plaintiffs and Nonparty 1, with the seals affixed by Nonparty 1, and sold all of the beneficiary certificates 29,723.27 accounts in the name of each investment trust, and deposited KRW 39,451,082 deposited in the above investment trust account on July 24, 2007, after withdrawing KRW 39,451,082 deposited in the above investment trust account in the name of the Defendant.

[Basis] Facts without dispute, Gap evidence 1-1, 2, and 2-1, 2, 3, 4, 7, Eul evidence 1, 2-1, 2, and 27, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

In order to donate property to the plaintiffs while living, Nonparty 1 entered into the instant investment trust contract in the name of the plaintiffs and purchased beneficiary certificates equivalent to KRW 30,00,000,00, respectively, and thus, the plaintiffs have the rights under the investment trust contract. However, after Nonparty 1’s death, the defendant is obliged to pay the plaintiffs the sales price of each of the above beneficiary certificates belonging to the plaintiffs by taking advantage of the opportunity to carry the passbook in the name of the plaintiffs and Nonparty 1’s seal, and by acquiring KRW 78,902,164 ( KRW 39,451,082 x 2). Accordingly, the defendant is obliged to pay the plaintiffs the sales price of each of the above beneficiary certificates belonging to the plaintiffs by taking advantage of the opportunity to carry the passbook in the name of the plaintiffs and Nonparty 1’s seal.

B. Defendant’s assertion

Since Nonparty 1 borrowed the Plaintiffs’ name in order to receive non-taxable benefits and concluded the instant investment trust contract, Nonparty 1 has the right under the investment trust contract as a party to the instant investment trust contract. Therefore, the sales price of beneficiary certificates under the instant investment trust contract is only Nonparty 1’s inherited property, not the Plaintiffs’ ownership.

3. Determination

A. The issues of the instant case

The key issue of the instant case is whether the rights under the instant investment trust agreement, which is a financial institution, under the name of Nonparty 1 prior to the death of Nonparty 1, belong to the Plaintiffs, the nominal party of the instant investment trust agreement, and to anyone of Nonparty 1, the actual party to the instant investment trust agreement, which is the financial institution, and the party who entered into the instant investment trust agreement with the instant investment securities.

B. Relevant legal principles (Supreme Court en banc Decision 2008Da45828 Decided March 19, 2009)

The Act on Real Name Financial Transactions and Confidentiality (hereinafter “Act on Real Name Financial Transactions”) established to clarify who is the deposit holder, etc. who has the right to request the return of a deposit, etc. based on a deposit contract, should be treated as a type of and prompt financial transaction by a financial institution. The Act on Real Name Financial Transactions and Confidentiality (hereinafter “Act on Real Name Financial Transactions”) established to clarify who is the deposit holder, etc., based on a deposit contract. Accordingly, the Act on Real Name Financial Transactions and Confidentiality established to establish procedures for real name verification in order to clarify who is the deposit holder, etc. who has the right to request the return of a deposit arising from a deposit contract, should be interpreted based on the intention of the party objectively confirmed by the real name verification procedure.

In particular, prior to the enforcement of the Real Name Financial Transactions Act, there was room to interpret a financial institution’s intent to contribute funds to the bank without asking the name of the deposit owner and to enter into a deposit contract with the deposit manager, and there was no room to protect the trust of the financial institution in the deposit name. However, even after the implementation of the Real Name Financial Transactions Act, it should be deemed that the deposit title holder who has conducted real name verification through the resident registration certificate, etc. has expressed his/her intent to enter into a deposit contract with the financial institution as a “transaction” under Article 3(1) of the Real Name Financial Transactions Act, barring any special circumstance. Moreover, it is also a financial institution that is required to promptly and repeatedly deal with large-scale and repeated deposit transactions, and as a result, it should be understood as accepting the deposit title holder who has entered into a deposit contract as a contracting party expressing his/her intent to enter into a contract through real name verification in order to prevent disputes over the confirmation of the parties to the deposit contract and to clarify the legal relationship between the contributor and the deposit title holder.

In conclusion, if a deposit contract is concluded through a real-name verification procedure under the Act on Real Name Financial Transactions and the fact is clearly stated in the real-name verification deposit contract statement, it would be reasonable to interpret that the deposit title holder, the person acting as the deposit title holder, and the intent of the financial institution would be the party to the deposit contract, and to clarify the legal relationship as to the party to the deposit contract.

On the contrary, in order to regard the contributor, etc., who is not the deposit title holder, as a party to the deposit contract, the deposit contract with the financial institution, contributor, etc. shall be excluded from the right to claim the deposit from the deposit title holder after undergoing the real name verification procedure, and the deposit contract with the contributor, etc. shall be limited to extremely exceptional cases where there is a clear agreement with the intent to transfer the right to claim the deposit to the contributor, etc. by concluding the deposit contract with the fund manager, etc., and such agreement with the intent should be strictly recognized by specific and objective evidence to the extent sufficient to reverse the probative value of the deposit

The circumstance that the contributor, etc., after the conclusion of the deposit contract, did not deliver the deposit passbook and the seal imprint, etc. to the deposit title-holder and possessed the interest on the deposit or principal, etc., and the financial institution was not clearly aware at the time of the conclusion of the deposit contract. Thus, it cannot be concluded that the financial institution had the intent to conclude the deposit contract with the contributor, etc. at the time of the conclusion of the deposit contract. Furthermore, even if the financial institution was aware of the aforementioned circumstances at the time of the deposit contract, it may be interpreted that the contributor, etc., under the premise that the right to claim the deposit under the deposit contract belongs to the deposit title-holder, even though he was delegated by the deposit title-holder, he did not have the right to request the return of the deposit or exercise the right to receive the deposit by holding the deposit deposit passbook and seal, etc. as delegated by the deposit title-holder, and it cannot be deemed that there exists a clear agreement between the financial institution and the fund contributor, etc. to vest in the deposit title-holder’s internal legal relationship with the deposit title-holder, etc.

C. Determination of the instant case

In light of the above facts and relevant legal principles, since the instant investment trust contract was concluded by Nonparty 1 through the real name verification procedure with respect to the Plaintiffs in accordance with the preparation of the application form for the investment trust in the names of the Plaintiffs, it would normally be reasonable in light of empirical rule to interpret that Nonparty 1, the actual party to the instant investment trust contract, and the intent to regard the Plaintiffs, the nominal owner, as the parties to the instant investment trust contract, were to be the parties to the instant investment trust contract. Furthermore, according to specific and objective evidence having clear probative value to the extent sufficient to reverse the probative value of the said application form for investment trust, which was prepared through the real name verification procedure, the instant investment trust contract shall be deemed to be the parties to the instant investment trust contract, unless it is acknowledged that Nonparty 1 and Nonparty 1, who concluded the instant investment trust contract with Nonparty 1 and concluded the investment trust contract and concluded the investment trust contract with Nonparty 1, and there is clear

Meanwhile, as seen earlier, Nonparty 1 contributed to KRW 30,00,00 to KRW 30,00 for the purchase of beneficiary certificates while entering into the instant investment trust contract, used his seal with his transaction seal, and managed it before the Plaintiffs die without delivering passbook and transaction seal. However, such circumstance is merely an internal legal relationship between the individual Plaintiffs and Nonparty 1 as at the time of entering into the instant investment trust contract, which is difficult to clearly understand or merely an internal legal relationship between the instant investment trust contract and Nonparty 1, it cannot be deemed that: (a) there was no clear agreement between Nonparty 1 and Nonparty 3 with the intention of devolving 1 to vest in the contract; (b) evidence 1, 3-1, 2, 4-1, 6, 7-1, 28-2, 1, 1, 2-1, 2-1, 2-1, 4-1, 2-1, 2-1, 2-2, 1-2, 2-1, 1-1, 2-1, 1-2, 2

Therefore, the Plaintiffs have the right under each of the instant investment trust agreements, namely, the right to decide whether to sell the above beneficiary certificates, and the proceeds therefrom, if sold, shall be reverted to the Plaintiffs. Since the Defendant, without any legal cause, sold the above beneficiary certificates and acquired 39,451,082 annual sales proceeds per each account, without any legal cause, each of the Plaintiffs is obligated to pay damages for delay calculated at a rate of 5% per annum as provided by the Civil Act from August 13, 2010 to September 22, 2011, which is the day following the delivery date of a copy of the complaint of this case, and as the Plaintiffs seek, from August 13, 2010 to September 22, 2011.

4. Conclusion

The plaintiffs' claims of this case are justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. Since the part against the plaintiffs in the judgment of the court of first instance as to each of the above recognition amounts is unfair with different conclusions, they are revoked and the defendant is ordered to pay each of the above amounts, and the remaining appeals of the plaintiffs are dismissed as they are without merit. It is so decided as per Disposition.

Judges Seo-Gyeong (Presiding Judge)