[1] Whether the proviso of Article 2 of the Addenda to the Securities Investment Trust Business Act ( September 16, 1998) applies to redemption requested by a selling company (affirmative)

[2] The case holding that the Securities Investment Trust Business Act before the amendment applies to the claim for redemption of beneficiary certificates of the above investment trust on the ground that the amendment of the terms and conditions applicable to the above investment trust after the separation and conversion of the bond-type investment trust into the mixed investment trust does not fall under the "establishment or modification of the terms and conditions of trust" under the proviso of Article 2 of the Addenda of the Securities Investment Trust Business Act (amended by September

[3] The case holding that a selling company is liable to pay a redemption price with its own property upon a beneficiary's claim for redemption under the interpretation of the terms of an investment trust agreement applied to the

[1] The Securities Investment Trust Business Act, amended by Act No. 558 of September 16, 1998, provides that unlike prior to the amendment, a distribution company which received a claim for redemption from a beneficiary shall demand the truster company to comply with the redemption (Article 7(4)). There is no reason to deal with the claim for redemption against the truster company and the claim for redemption against the selling company. Therefore, the proviso of Article 2 of the Addenda of the same Act uses the expression "as to the redemption of beneficiary certificates against the truster company at the time of enforcement of this Act" as "as to the redemption of beneficiary certificates against the truster company at the time of enforcement of this Act. However, the above provision applies not only

[2] In a case where the terms and conditions applicable to the above investment trust after the corporate bond-type investment trust was divided and converted into a mixed investment trust are amended after obtaining approval from the Financial Supervisory Commission, the case holding that the Securities Investment Trust Business Act prior to the amendment applies to the claim for redemption of beneficiary certificates of the above investment trust since the amendment of the terms and conditions does not fall under the "establishment or modification of the trust terms and conditions" under the proviso of Article 2 of the Addenda of the Securities Investment Trust Business Act

[3] The case holding that in the interpretation of the terms and conditions of an investment trust to which the former Securities Investment Trust Business Act (amended by Act No. 5558 of Sep. 16, 1998) applies, even if the terms and conditions of an investment trust are the parties to the redemption in question, and the selling company is obligated to pay the redemption price with its own property upon the beneficiary's claim for redemption, and unlike the terms and conditions before the amendment, the above terms and conditions impose an obligation on the selling company which has received the claim for redemption from the beneficiary to make a claim for redemption of the beneficiary certificates, they do not deny the selling company's obligation for redemption by its property

[1] Article 7(4) of the former Securities Investment Trust Business Act (repealed by Act No. 6987, Oct. 4, 2003; Article 2(3) of the Addenda to the Indirect Investment Trust Business Act (repealed by Act No. 6987; Article 2(3) of the current Act on Business of Operating Indirect Investment and Assets); Article 2 of the Addenda to the Act on Business of Operating Indirect Investment and Assets / [2] Article 2 of the Addenda to the Act on Business of Operating Indirect Investment and Assets (repealed by Act No. 6987, Oct. 4, 2003; Article 2 of the Addenda to the Act on Business of Operating Indirect Investment and Assets; Article 5(2) of the Act on the Regulation of Terms and Conditions / [3] Article 105 of the Civil Act; Article 7(2) of the former Securities Investment Trust Business Act (Amended by Act No. 558, Sep. 16, 1998; see current Article 62(2) and (3) of the Act)

[1] Supreme Court Decision 2001Da33253 decided Dec. 11, 2003 (Gong2004Sang, 95) Supreme Court Decision 2003Da8886 decided Dec. 12, 2003 (Gong2004Sang, 120)

Korean Bank (Law Firm Squa et al., Counsel for the plaintiff-appellant)

Modern Securities Co., Ltd. (Law Firm Rate, Attorneys Yoon Yong-op et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Na47107 delivered on January 17, 2003

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Terms and conditions applicable to the redemption of the instant investment trust;

The purpose of the main text of Article 3(2) of the Act on the Regulation of Terms and Conditions is to protect the interests of the contracting parties by having the contracting parties know in advance the content of the contract to be bound in the event of the formation of the contract, and the reason why the contract is binding against the contracting parties is that the contracting parties agree to include the terms and conditions in the contract. Therefore, in a case where the contracting parties or their agents are well aware of the contents of the terms and conditions, the terms and conditions are directly the contents of the contract and are binding upon the contracting parties. Therefore, it is not necessary for the business entity to separately explain the contents of the terms and conditions to the contracting parties or their agents (see Supreme Court Decision 97Da39308, Apr. 14, 1998).

In light of various circumstances, such as the reason why the Plaintiff applied for the separation and conversion of the instant investment trust as indicated in the judgment of the court below and the record, the time when the instant investment trust was converted from the bond-type investment trust before separation to the mixed-type investment trust, and the time when the amended terms and conditions approved by the Financial Supervisory Commission (hereinafter “amended terms and conditions”) was enforced around January 10, 200, and the Plaintiff was involved in the amendment of the terms and conditions as the trustee company of the instant investment trust, as well as the fact that the Plaintiff is the parent company of the Han light Investment Trust Co., Ltd., a truster company, the Plaintiff applied for the separation and conversion of the instant investment trust under well-known knowledge of the contents of the amended terms and conditions applicable

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the terms and conditions applicable to the investment trust of this case, the violation of the rules of evidence, or the incomplete hearing. This part

2. The Act applicable to the redemption of the instant investment trust;

According to Article 2 of the Addenda of the Securities Investment Trust Business Act (amended by Act No. 558 of September 16, 1998), the newly amended provisions related to redemption of beneficiary certificates shall begin to apply from the redemption of beneficiary certificates issued in accordance with the terms and conditions of trust which were first enacted or amended after the enforcement of the amended Investment Trust Business Act (limited to the extension of the trust contract period). However, with respect to redemption of beneficiary certificates to trust companies at the time of the enforcement of the amended Investment Trust Business Act, the provisions governing redemption of beneficiary certificates shall apply from the date prescribed by the Presidential Decree within one year from the enforcement date of the amended Investment Trust Business Act, and they shall apply from the redemption of beneficiary certificates issued in accordance with the terms and conditions of trust established or amended after the enforcement date. Article 2 of the Addenda of the amended Investment Trust Business Act (amended by Presidential Decree No. 1654). 2 of the amended Investment Trust Business Act (amended by Presidential Decree No. 1650, Sep. 16, 199).

According to the judgment of the court below and the records, after the instant investment trust was separated and converted from the foregoing bond-type investment trust, the amended terms and conditions changed its name from the bond-type investment trust to the mixed-type investment trust, as well as the management method of investment trust also changed the main contents of the terms and conditions, such as allowing investment in stocks, and establishing a provision on the target return rate. However, the amendment of the terms and conditions alone cannot be deemed to have been made for the first time after the enforcement of the amended Investment Trust Business Act. Furthermore, since Article 2 of the Addenda to the amended Investment Trust Business Act explicitly provides that the amendment of the newly amended terms and conditions in relation to the redemption of beneficiary certificates is limited to the extension of trust contract period, the amended terms and conditions without changing the trust contract period do not fall under the amended terms and conditions as stipulated in the above provision. Accordingly, since the instant beneficiary certificates are not the "beneficiary certificates issued under the amended or modified terms and conditions" after the enforcement of the amended Investment Trust Business Act, the amended Investment Trust Business Act cannot be applied to the claim for redemption of beneficiary certificates of this case.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the laws applicable to the investment trust.

3. Whether the liability for redemption is recognized for the assets of the selling company; and

The contents of a general transaction agreement shall be objectively and uniformly interpreted on the basis of the average customer's understanding potential without considering the intent or specific circumstances of each party to the contract. In a case where the contents of a contract are not clear or doubtful in terms of customer protection, it shall be narrowly interpreted in favor of the customer and against the drafter of the contract (see, e.g., Supreme Court Decisions 96Da12009, Jun. 25, 1996; 2005Da35226, Oct. 28, 2005). In addition, as the provisions of a standardized contract belonging to a disposal document are unclear, if there is a conflict of opinion between the parties about the interpretation of the standardized contract, the interpretation of the parties' intent as defined in the standardized contract shall be reasonably interpreted in accordance with logical and empirical rules by comprehensively examining the contents of the standardized contract, the motive and background leading up to the agreement, the purpose to be achieved by the agreement, the parties' genuine intent, etc. (see, e.g., Supreme Court Decision 99Da23574, Feb.).

Article 2 subparagraph 8 of the amended Terms and Conditions provides that "re-purchase" means the repurchase of beneficiary certificates sold by a selling company at the beneficiary's request for repurchase, and "re-sale" means the repurchase of beneficiary certificates re-purchaseed by a selling company at the beneficiary's request for repurchase. Article 11 provides that "a selling company may re-sale beneficiary certificates held by the repurchase." The proviso of Article 16 (2) provides that "if it is impossible for a selling company (or a selling company) to pay a redemption price to its assets on the date of redemption claim due to large amount of claims for redemption of beneficiary certificates, it may pay a redemption price within 15 days from the date of redemption claim," and Article 16 (3) provides that "a truster company (or a selling company) shall, notwithstanding the provisions of paragraph (2) above, notify the beneficiary without delay and delay in the sale of securities, etc., and may postpone the repurchase with approval from the preceding selling company until such grounds are resolved." Article 16 (2) provides that "The selling company and the parties concerned shall be deemed as property of each of this case."

Meanwhile, Article 25(1) of the amended Terms and Conditions deleted Article 25(1)2 and 3 (the time when the beneficiary certificates repurchased under the provisions of Article 16 are not re-sale) of the Terms and Conditions before the amendment, which is the ground for partial termination of an investment trust, and imposes on a selling company the obligation to request the truster company to cancel part of the investment trust certificates if the beneficiary certificates are claimed for redemption," under Article 25(1) of the amended Terms and Conditions, and under Article 25(2) of the amended Terms and Conditions, Article 25(2) of the amended Terms and Conditions provides that the selling company shall pay part of the trust certificates to the truster company in cash from the date of request for redemption of the trust assets, and under Article 25(3) of the amended Terms and Conditions, if the truster company receives a request for partial termination of the trust certificates from the selling company, the truster company shall be deemed to have received a request from the selling company for redemption of the trust assets in cash from the date of request for termination. Article 25(2) of the amended Terms and Conditions and Conditions shall not be interpreted to the selling company.

In addition, the investment trust of this case is divided and converted from the above bond type investment trust in accordance with the fund separation guidelines prepared by the investment trust association. According to the fund separation guidelines, the payment method of the redemption price related to the claim is not obligated to pay by cash created by partial termination of the trust like the above bond type investment trust, but is allowed to repurchase by the company's property, so in light of this point, the selling company is obligated to respond to the redemption of beneficiary certificates with its own property in accordance with the revised terms and conditions.

In contrast, the court below held that unlike the terms and conditions prior to the amendment, the revised terms and conditions do not recognize the seller's obligation to repurchase beneficiary certificates with respect to repurchase of beneficiary certificates, and imposes an obligation to request the truster company to partially terminate the trust, and on the other hand, the truster company is obligated to pay the repurchase price to beneficiaries only when it pays funds created upon the partial termination of the trust to the selling company. Thus, the court below erred in the misapprehension of legal principles as to the interpretation of the trust terms and has affected the conclusion of the judgment. The part of the grounds of appeal assigning this error is with merit.

4. Conclusion

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)